13 S.E.2d 686 | Ga. Ct. App. | 1941
Lead Opinion
The appellate division of the civil court of Fulton County erred in affirming the judgment of the trial judge.
Two questions are presented which will determine the issues; first, whether or not a garnishee, after having answered that he has no funds due the defendant in fi. fa., can subsequently amend his answer over objection duly made, and show that at the time the summons was served upon him he was indebted to the defendant in fi. fa.; and second, whether or not a garnishee can lawfully deduct from the daily, weekly, or monthly wages of an employee, earned after service of summons of garnishment, any portion of the balance above $1.25 per day plus 50 per cent. of the excess, and apply said balance, or any portion thereof, to the payment of a debt due the employer by the employee. The first question has been ruled adversely to the plaintiff in error. "An answer to a summons of garnishment, made at the proper term of court, is *435
amendable." Simplex Machine Co. v. Greenberg Bond Co.,
In answer to the second question, the employer can not, under the law, deduct from the daily, weekly, or monthly wages of an employee, earned after service of summons of garnishment, any portion of said balance above $1.25 per day plus 50 per cent. of the excess, and apply said balance or any portion thereof to the payment of a debt due by the employee to the employer or any other such creditor. There still seems to exist some confusion in the minds of some regarding this principle. The Code, § 46-203, provides: "Whenever a summons of garnishment shall be served on any person, and such person, after the date of such service, shall become indebted to the defendant, such subsequent indebtedness immediately upon its accruing shall become subject to the lien of such garnishment, and no payments made by the garnishee to the defendant or to his order after the date of the service of the garnishment shall defeat the lien of such garnishment. The service of a summons of garnishment shall in all cases operate as a lien on all the garnishee's indebtedness at the date of the service and also on all future indebtedness accruing up to the date of the answer, and such lien shall not be defendant by any payments by the garnishee or overdrafts by the defendant or other arrangements between the defendant and the garnishee. This section shall not operate to change or alter the laws exempting from the process and liabilities of garnishment the daily, weekly, or monthly wages of journeymen mechanics and day laborers." This section was intended to make plain that upon the service of a summons of garnishment a lien was created in favor of the plaintiff on all the indebtedness of the garnishee to the defendant in fi. fa., over and above the exemption at the time of the service of the summons, and upon all future indebtedness accruing up to the date of the answer, and that the lien should attach immediately upon the accruing of the indebtedness, and should from that time, the date of accruing, operate as a lien in favor of the plaintiff; "and no payments made by the garnishee to the defendant or to his order after the date of the service of the garnishment shall defeat the lien of such garnishment, . . and such lien shall not be defeated by any payments *436 by the garnishee or overdrafts by the defendant or other arrangements between the defendant and the garnishee." The language could have been no more emphatic.
So, the statute provides, first, that the overage above the exemption of the indebtedness owing by the garnishee to the defendant in fi. fa. at the time of service of the summons is impressed with a lien in favor of the plaintiff; second, that a lien immediately attaches to future overages of indebtedness above exemptions, as they accrue from the date of service to the time for the answer as fixed by the process; and third, that this lien can not be defeated by any kind of payment by the garnishee to himself or to another, or by any other kind of arrangement.
Applying these statutory provisions to the facts of this case, it is clear and undisputed that the defendant in fi. fa. earned $60 from December 1, 1939, to December 30, 1939, at the weekly wage of $15; this exemption per week of $1.25 daily for 6 work days is $7.50; 50 per cent. of the excess is $3.75 per week, or a total exemption weekly of $11.75, leaving an overage balance of $3.75 weekly, or a total of $15.00 of the $60, to which the lien of the garnishment attached as it accrued. Therefore the garnishee could not escape liability to the garnisher by applying the same or any portion thereof to an overdraft to himself or any one else, or by making any kind of arrangement between himself and the defendant in fi. fa. or any other person.
The pleadings and facts in the instant case do not show a debt due the garnishee by the defendant in garnishment, arising from advances prior to the service of the summons of garnishment (Odum v. Macon Birmingham Railway Co.,
Judgment reversed. Broyles, C. J., concurs. *437
Concurrence Opinion
The act of 1901 (Ga. L. 1901, p. 551; Code, § 46-203) was passed to avoid advance payments after the service of garnishment, where no indebtedness, as hereinafter described, existed. I think the word indebtedness as here used implies an absolute or complete liability, and that if the garnishee has assets in his hands he is entitled to set off any indebtedness owed by the defendant in garnishment, and all such indebtedness. "As to whether such garnishee is or is not indebted to the defendant, or whether such garnishee has assets of such defendant in its hands, should be ascertained by a comparison of their respective claims or accounts, and the judgment should be in accordance therewith." MutualReserve Life Insurance Co. v. Fowler,