Joiner v. Dougherty-Ward-Little Co.

14 Ga. App. 360 | Ga. Ct. App. | 1913

Lead Opinion

Roan, J.

The affidavit of garnishment in this case was void because it failed to comply with section 5304 of the Civil Code, which requires, as a condition to the issuance of garnishment to reach a distributive share of an estate in the hands of an. administrator, that “the creditor will swear — in addition to the oath required in ordinary cases — that his debtor resides without the State, or is insolvent.” National Lumber Co. v. Turner, 2 Ga. App. 750 (59 S. E. 15). When a companion case to this was before the Court of Appeals (Stovall v. Joiner, 10 Ga. App. 204, 73 S. E. 22), it was held that the affidavit was amendable. In the present case, prior to amendment of the affidavit, the amount due the defendant as distributee was paid into the bankruptcy court by the administrator, under an order of that court, after notice to all the creditors of the defendant. In' Stovall v. Joiner, the rule announced was, “Where an affidavit of garnishment'against an administrator omits the allegation that the defendant is insolvent, the omission may be supplied by amendment, unless in the meantime the garnishee, or some third party, has acted to his injury by reason of the omission.” In the present case,, to allow the omission to be cured by amendment would operate to the injury of the garnishee, who, before the amendment was offered, complied with the order and judgment of the bankruptcy court to pay the fund into that court, after due notice to all creditors, which necessarily included this creditor. The creditor having acquiesced in the judgment of the bankruptcy court, and the ■ garnishee' having acted on that judgment, and paid the fund into that court for distribution at a time when the garnishment proceedings were void upon their face, the garnishee is now protected. To allow the judgment against this administrator as garnishee to stand would force him to pay the fund twice through no fault of his.

The judgment of the city court is therefore Reversed.

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Rehearing

ON MOTION ROE REHEARING.

The defendant in error complains of certain statements made in the opinion which it avers are not supported by the record. It is urged that the statement in the opinion that the amount due the defendant, as distributee, ivas paid over to the bankruptcy court “ after notice to all the creditors of the defendant” is not borne out by the record. The statement complained of was taken literally from the amendment to the answer of the garnishee, which was allowed by the court. The answer to the garnishment was not traversed, and therefore all statements of fact appearing in the answer must be taken as true. Civil Code, § 5283; Darlington v. Belt, 12 Ga. App. 522 (77 S. E. 653). The movant criticises the decision of this court in Stovall v. Joiner, 10 Ga. App. 204 (73 S. E. 22). In reply to this criticism it is sufficient to say that the case was carefully considered, and we are satisfied that the decision does'not in any way conflict with any decision of the Supreme Court or with former decisions of this court.

The fundamental principle upon which the decision in the present case is rested is that, the original garnishment proceedings being invalid, the garnishee had the right to pay the money over into the bankruptcy court; and the fact that the garnishment proceedings were subsequently perfected by amendment would not operate to render the garnishee liable to pay the fund twice, when he had previously lawfully paid it over to the bankruptcy court.