1 Ga. App. 338 | Ga. Ct. App. | 1907
Holmes & Company sued out an attachment against A. M. Calhoun as a non-resident, and served a summons of garnishment on Pope & Fleming, who filed an answer denying the indebtedness. The plaintiffs in attachment traversed the answer of the garnishees, and at the conclusion of the evidence the court directed a verdict in favor of the answer of the garnishees and against the traverse of the plaintiffs. The plaintiffs made a motion for new trial, which was overruled, and the overruling of this motion is. the error assigned here. A motion to dismiss the writ of error was duly presented here, and will be first considered. The motion is as follows: (1) “Because there is no sufficient assignment of error, the only assignment of error being the following recital in the bill of exceptions, namely: ‘To which order of Judge Eve, overruling said motion [for new trial] and denying said new trial, the said John F. Holmes & Company did then and there except and assign the same as error.’ From their recital it does not appear upon which one or more of the grounds of motion for a new trial assignment of error is predicated, nor does it appear that plaintiff in error made any exception to the said ruling at the time of presenting the bill'of exceptions.” (3) Because the grounds of motion for new trial were certified as true, “subject to correction at the hearing,” and it does not appear that said grounds were subsequently approved without qualification. (3) Because the brief of evidence contains only a brief of the oral testimony, and does not embrace in any form any of the written documentary evidence introduced at the trial, the said written documentary 'evidence being
We find no merit in this motion. The assignment of error is sufficient under numerous rulings of the Supreme Court. “A motion for a new trial being based upon several grounds distinctly set forth therein, an assignment of error in a bill of exceptions that the court erred, in overruling the motion is sufficiently plain and specific in setting forth the errors complained of, under the act of November 11, 1889.” Gray v. Phillips, 88 Ga. 199. See also Hardison v. Burr, 73 Ga. 135; Erskine v. Duffy, 76 Ga. 603; Dutch v. State, 90 Ga. 473.
The second ground for motion to dismiss is because the grounds of the motion for new trial were certified as true, subject to correction at the hearing. This ground of motion to dismiss is obliterated by the positive statement in the bill .of exceptions that the recitals of fact contained in the motion for new trial are true and correct.
There is no merit in the third ground of the motion to dismiss. While the documentary evidence should always be briefed, it appears from the approved brief of evidence that the rule was substantially complied with in this case. And it is “unlawful . . to 'dismiss any case for any want of technical conformity to the statutes or rules regulating the practice, . . where there is enough in the bill of exceptions or transcript of the record presented, or both together, to enable the court to ascertain substantially the real questions in the case,” etc. Civil Code, §5569. In this case the full copies may be treated as mere surplusage. Rudolph v. Underwood, 88 Ga. 665 (9). “Where the bill of exceptions and the judge’s certificate both conform to the act of 1889 for bringing cases to this court, and the error complained of is the overruling of a motion for new trial,' the writ of error will not be dismissed because this court may be of opinion that some parts of the record specified are not material.”
For another reason the motion to dismiss is not well taken. “It appears that the brief was agreed upon as correct by counsel for both the movant and the respondent in the motion for a new trial, and the bill of exceptions states affirmatively that this brief was approved by the court and ordered filed. The record also discloses that the motion for a new trial was heard and determined without
On the trial of this case it appeared that Mrs. Calhoun, against whom a judgment was rendered on an attachment as a non-resident, liad procured a loan of money from the garnishees, Pope & Fleming, and that a balance of said loan was still in the hands of Pope •& Fleming. This sum Holmes & Company sought to reach by process of garnishment. It further appeared that the fund in the hands of Pope & Fleming was part of a loan advanced for one -specific purpose; to wit, to aid Mrs. Calhoun in her farming operations — assist her to produce a crop of cotton, which, as was contracted, should afterwards be handled and sold upon commission by Pope & Fleming as cotton factors. Not only was the money to be used for only one purpose, but there was a benefit in the contract to Pope & Fleming, who were to receive commission on a fixed ■number of bales of cotton to be raised by Mrs. Calhoun and to be handled by them. The consideration inducing the loan was less affected by the interest on the money than by the larger commissions on the cotton to be delivered, and the single purpose for which
. We think there was no error in refusing a new trial2 because the verdict was demanded under the evidence by either one of two legal reasons: The money, which Pope &.Fleming were still due to- Mrs. Calhoun under the contract, was to be advanced only for one special purpose beneficial to them; and secondly,-the defendant being indebted to them on a note, they were entitled to apply any amount they might be due her toward the payment of their note, although it was not due, because she was a non-resident. Generally a judgment creditor may acquire by garnishment a control over the choses in action of the defendant, and thereby in effect bring suit against his debtor’s debtor. But there are many exceptions to this rule; for there are cases in which a creditor'may enforce claims where the debtor could not. And conversely, the debtor may proceed where the creditor could no.t. Secret liens and fraudulent deeds may bind the one and be ineffective against the other. On the other hand, the debtor may sue for torts, but the creditor can not make such a cause of action available even by a process of garnishment. Williams v. Williams, 122 Ga. 180. But where by garnishment the creditor is placed in the shoes of the debtor as regards the garnishee, he enjoys that privilege in connection with the burdens of the position; for what the debtor can not recover he can not reach. The fund in the hands of Pope & Fleming, if subject to be advanced to Mrs. Calhoun without limitation, could be reached by Holmes & Company. But as the uncontradieted evidence showed that the contract required Mrs. Calhoun to use it in making a crop, she could not demand it for any other purpose, and Holmes & Company, standing in her shoes, occupy no better position, because the expenditure of this money on a pleasure trip by Mrs. Calhoun, or by Holmes & Company in part payment of their claim, would either of them necessarily have- been injurious to Pope & Fleming and in violation of their contract.
But aside from this, the uncontradicted evidence showed that Mrs. Calhoun was a resident of .the State of South Carolina, and indeed her non-residence was the ground of the plaintiffs’ attachment; and this being so, if Mrs. Calhoun had brought suit herself against Pope & Fleming for the $72:30 in their hands, they could have pleaded as a set-off. their, note fo.r $524.89, even though, that