173 Ga. 883 | Ga. | 1931
Lead Opinion
On December 8,1927, M. L. Odom recovered, in an action for libel in Jeff Davis superior court, a judgment against Mrs. M. A. I. Attaway and her husband W. B. Attaway, the action having been based upon an effort of the Attaways to have Odom adjudicated a bankrupt. On March 6, 1929, in the same court Mrs. Attaway recovered against Odom a judgment in an action ex contractu. Odom is a resident of Pierce County. About December 9, 1929, the sheriff of Jeff Davis County levied the execution issued on the judgment of Odom against Mrs. Attaway upon described land as belonging to her. Both M. L. Odom and W. B. Attaway are insolvent. Odom’s judgment was for $2-112.35. Attaway’s judgment was for approximately $2145.80. The case of Attaway against Odom was carried on writ of error, but without supersedeas, to the Court of Appeals, and was pending at the time of the filing of this suit in Pierce superior court, December 20, 1929. The judgment was affirmed in the Court of Appeals, January 29, 1930. Odom v. Attaway, 41 Ga. App. 51 (152 S. E. 148). After alleging what is set out above, the petition brought by Mrs. Attaway against Odom and the sheriff of Jeff Davis County prayed (1) that proceedings under the levy of the execution in favor of Odom be stayed by injunction; (2) that the judgments and executions be set off the one against the other; and (3) for general relief. Interventions were filed by Oliver & Oliver and L. E. Heath, attorneys, Oliver Investment Co., a corporation, Mrs. Wilmer S. Curling Meade, administratrix of the estate of H. B. Curling, deceased, and by M. E. Wood, the stenographer of the Brunswick Circuit. The interventions of the attorneys set up alleged prior liens upon the judgment of Odom against Mrs. Attaway, for legal services in the litigation which resulted in that judgment. The interventions of Oliver Investment Co. and Mrs. Meade set up assignments of the judgment, made prior to the date of the judgment of Mrs. Attaway against Odom, to secure certain debts. That'of Wood set up a judgment for services in reporting the evidence in the case of Odom against Mrs. Attaway.
On the trial of the case the court directed a verdict for the
At the time an amendment to the intervention in favor of Wood was offered, counsel for plaintiff stated: “I don’t see any reason to object to the allowance of the amendment, just so it is allowed like it was before — allowed subject to demurrer or motion to strike. So far as we are concerned, . . we don’t ask your honor to grant any injunction against the officers’ court costs. I mean the sheriff and the clerk and the stenographer. They can’t be paid any other way except by fees. Counsel can take care of themselves. Officers can’t.” It is contended, that, because the verdict and decree were invoked by counsel for petitioner, -the statement til counsel as above quoted was an admission in judicio that petitioner
On the trial of the injunction suit, petitioner announced in open court that in undertaking to set off the execution of Attaway against the execution of Odom et al., and in seeking to enjoin the threatened levy under the latter execution, she did not seek “any injunction against the officers of court.” It is insisted that this is an “admission in judicio, which was adverse to the interests of plaintiff, and in favor of the clerk, sheriff, and stenographer;” that the right of such set-off “is entire, and not severable;” and that by such announcement petitioner waived any right to set-off as against any of the judgment. The legal rights of the officers of court for their fees are not so connected with the other judgments as to make the rights of the plaintiff entire in the respect contended. Petitioner was legally' authorized to waive any prayer for injunction as against the officers of court; she could elect to pay the amounts due them, and prosecute the injunction. as against enforcement of other portions of the execution. Compare Love v. National Ins. Co., 157 Ga. 259 (3, 4) (121 S. E. 648).
The second headnote does not require elaboration.
The sections of the Code which have reference to setting off one judgment against another and the assignment of judgments are as follows: § 4342: “ Judgments in the same court may be set off
In 15 R. C. L. 820, § 287, we find the following: “The basis of the right to set off judgments is not different from the right to set off mutual claims of any kind. The manner in which the action of a court of law may be obtained in reference to a. right of set-off is by motion made to the court, notice of which should be duly given to the adverse party. The general- rule appears to be that one judgment may be set off against another, although all the parties to the different records are not the same. Where a judgment is
Coming now to the matter of assignees of such judgments, we find that in the Code, § 4342, it is expressly stated “the rights of an
Code 1910 1895 1882 1873 1868 1863
Sec. 4342 3748 2902 2902 2851 2843
Sec. 5670 5086 3467 3467 3415 3396
Against each of the sections stated in the Code of 1882 appear references to Freeman on Judgments, § 277 et seq., § 467(a), and Duncan v. Bloomstock, supra, and against § 4342 in the same Code there appears the additional reference “Waterman on Set-Off, 372.” It can not be definitely ascertained from the marginal notes the sources from which these two Code sections were derived. “It is a well-settled rule of construction that where there is a conflict between two parts of a single act, the latest in position will be declared to be the law, as from its position it is presumed to be the last expression of the legislative will. That such rule is well established can not be questioned. Gilbert v. Railroad Company, 104 Ga. 412 [30 S. E. 673. . . Other authorities are also cited.] The reason of this rule has been stated to be, that, On the reading of a bill, matter near the close may be presumed to receive the last consideration, and, if assented to, is a later conclusion.’ Sutherland, Stat. Const. § 220.” But Mr. Justice Cobb, for the court, continues: “If such is the reason, the rule should not be applied in all its strictness when the provisions of a code of laws are under consideration, as such a body of laws is rarely, if ever, read in the General Assembly. A rule founded upon the same principle is applicable when there are two conflicting sections in a code, and that is, that section prevails which is derived from a
We have not been able to ascertain any legislative authority for sections 4342 and 5670, except the acts adopting the Codes as law. It remains to be considered, in case of a conflict between sections of the code in the circumstances just stated,-whether one may be considered as preferred rather than the other; and if so, which. We have just seen that a rule of construction as between statutes “should not be applied in all its strictness” as between different sections of a code of laws. The inference is that the position of the two code sections may be considered, but their relative positions can not be held as conclusive of the legislative will. The later section, that is § 5670, does occupy a more favorable position,'but, standing alone, that fact is not conclusive. The Codes of 1863, 1895, and 1910 were adopted as Codes of Georgia by the General Assembly, and all their provisions became endowed with the force and effect of statutes. Other Codes were “revisions” made by legislative direction. The Codes of 1863 and 1868 were ratified by the constitutions of 1865 and 1868. For a full history, see “History of the Various Codifications of the Laws of Georgia,” first page of Code of 1910. Code (1910) § 5969 is derived from the act approved December 22, 1829 (Ga. Laws 1829, p. 69); Cobb’s Dig. 499; Prince’s Digest, 465. Here we have an expression of the legislative will. That section made express provision for a transfer or assignment of any judgment or execution to a third person. Hnder the terms of this section, a judgment may be transferred or assigned any number of times, provided there was good faith, and in all eases where done in good faith the transferee “shall have the same rights and be liable lo ihe same equities and subject to the same defenses as the original plaintiff in judgment was.” This section again declares in express terms the same principles involved in section 5670;
In Scott v. Harkins, 32 Ga. 302, the opinion of the court concludes with this statement: “We need only say that the settled doctrine of this court is that the assignee of a judgment takes subjéet to all equities between the original parties.” In the following cases the court dealt with the question of setting off one judgment against another. Colquitt v. Bonner, 2 Ga. 155; Meriwether v.
The fourth headnote does not require elaboration.
It follows that the judgment of the trial court in decreeing a set-off was not erroneous.
Judgment affirmed.
Concurrence Opinion
concurs in the judgment of affirmance, but not 'in all that is said in the opinion.