*1 et al. ROQUEMORE et al. v. GOLDSTEIN 37678. bankruptcy does not adjudication Judge. 1. An Townsend, based garnishment lien of automatically void the thereto', prior next but four months judgment rendered within U.S.C.A. when the conditions renders it voidable §107 (3) App. 135 (a) Co., 95 Ga. McLean v. Duke are met. G. T. (97 E. 2d S. invalidity of a lien of
2.
has the
to assert
four months
renderеd within
based
ex
involved is
adjudication
property
if
to him as such
empt
been set aside
as a homestead and has
_Morris
Bank
Plan
Geor
proceedings.
gia
(39
Chicago,
166);
v.
S. E. 2d
Simmons,
201 Ga.
Q.
Ct.
57 L. Ed.
Hall,
B. & R. Co. v.
4. lien of a attaches existing time, at mons of on indеbtedness summons, embraced within the as to and, future accruing immediately upon it attaches of the indebtedness. 2d enby 686); Wager, Ow v. Code 46-203. (Sam- trustee, The trustee if bankruptcy, or,
5. no ple 236) may exempt v. S. E. 2d Jackson, 225 N. C. property only in as a homestead accordance bankruptcy proсeedings state which the law of the attempted property where to be so set instituted, and, are compliance with law valid for lack of state aside, but merely judicata action res created, homestead is part did not administer it fact that creditors, of his but as bankrupt’s estate for the benefit property or fund creditors who have a pur- ineffectual for that attempt the homestead aside is judicata pose and does become res (Mo.) exempt. Shipman 912; 2d Fitzpatrick v. S. W. fact 365); Lynch App. 2d 512 P. 2d Speck, 47 Cal. Thomas Bankruptcy Re- 776; Ogilvie, In re 5 Am. 2d Stotler, 215 F. ports, 374. Applying foregoing appears
6. law to the facts this case it Company, that Goldstein Prior Tire ob- Gordon, d/b/a a judgment against tained Charles Edward at December term of the Civil of Fulton Court and filed garnishment against employer on December *2 garnishee made showing answer an of $200.16 March on the date filed his same petition voluntary adjudicated and was bankrupt in the U. S. Court for Georgia. District the Northern District of referee, bankrupt claimed this fund as a homestead and the it aside to him such. On June 1958, he was dis- charged in bankruptcy. Roquemore filed a per- petual stay of in the execution Civil Court of and, on the hearing, introduced the in evidence. The court denied his motion to hearing dismiss and after evi- dence entered in plaintiffs favor of the Roquemore and P. E. Thomas, surety in the dissolution bond which the posted. defendant had This was affirmed appellate the division of that court, and the judgment of affirmance is assigned here as error.
The garnishee, having paid money the prior any into court
notice
debtor claimed the fund as a homestead ex-
emption is, of course, protected, and in
particular
this
case
Taylor
differs
from
v. Jarrell,
It follows that since this record shows no county to the his for residence personal direction in to invest fund his home- valid, stead was not and the trial properly garnishment. found the fund Quillian Judgment Felton, J., Carlisle, C. and Nich- affirmed. P. Gardner, J., concur. dissents. JJ., ols, 29, Decided October for error. Sams, plaintiffs Miles B. Nodvin,
Marvin P. contra. term, December Presiding dissenting. At the Judge, Gardner, Leon 1957, County, Court of Abe Gold- judgment against Company, Prior Tire obtained a stein, d/b/a Roquemore principal, $177.95 the dеfendant Charles Edward for attorney’s $24.92 $26.70 $15.50 interest, fees, and costs. A summons of was sued and served on out Paul 1958, Thomas, garnishee, December March 17, 1957. On Roquemore adjudicated having filed in the U. S. Court for Georgia, District the Northern Atlanta District Division, voluntary petition bankruptcy. his On the same date, 17, 1958, Roquemore March filed in said civil court his petition praying for stay judgment of execution on the pending bankruptcy prayed him, alleging proceeding, permanent stay discharge, bankruptcy. event Roquemore On March filed a dissolution bond garnishment proceedings claiming P. as surety, with Thomas as exemрt Bankruptcy from the U. S. Law under the by employer “$200 law from wages paid withheld into court (valuation) $200.” Same was awarded to the bankrupt by the referee in bankruptcy, no trus- tee having appointed. been on October Thereafter, Roquemore filed his claim to such funds. The case camе on healing court, for before the without the intervention aof jury. tendered evidence the judgment, moved on the dissolution bond perpetual stay execution as to
Roquemore objected to the introduction *4 ground him on the that he permanent was entitled to a stay of in bankruptcy, account rendered June 1958, introducing evidence said trial court a certified copy judgment. objection of that overruled. was A certi- judgment such was admitted in fied of evidence. There- orally moved that the be upon Roquemore case dismissed on court had no grounds matter, that attacking the allowance of said plaintiff having рleading garnishment filed petition of and since homestead, since the alleged and that adjudication Roquemore as a nothing except had before it such for those reasons the court plea court permanent stay of execution. The refused proceeded judg- triаl case, motion and with the rendered setting plaintiff defendant, ment favor of the and having judg- out herein heretofore obtained that “the defendant ment” for several sums out hereinabove and “sum- mons of has or was served on the garnishee, Paul garnishee admitting and that said has filed answer an indebtedness of $200.60, due the defendant and no traverse having same, been filed to said sum hereby adjudged be subject process to the in this case, judgment hereby rendered in favor of the against said funds answered into garnishee for the sum $200.60. It further' appearing to the court that the defendant the above stated case has proceeding dissolved the . . . by giving a dissolution bond ... for the sum $177.95 principal, $22.65 $ . costs, interest and which said sums were answered by garnishee as due the defendant and adjudged by this court to process garnish- ment in this case. Otherwise than for special'judgment herein rendered, perpetual stay is hereby granted as judgment in main case . . This the day 10th of No- vember, 1958.”
The record of this case before this court shows a judg- in favor ment of the defendants in error The record any fails to disclose suit a homestead waiver note, or written evidence of waiving homestead and exemptiоn rights Roquemore’s part. quoted
To the above defendant as- signed error and moved for a new trial, provided under the applied rules and law Court of County. Appellate Division of said Civil Court of Fulton County ap- proved ruling Judge of Chief Parker, and to this order final defendant “then and there excepted, excepts, assigns now error thereon as being contrary ruling law.” is to this is here for case review.
596 bill in the party plaintiff
Paul Thomas is named a also exceptions to this court. defend- plaintiff judgment against the money
The obtained a County. Roquemore ant Court of Fulton The rec- upon any does nоt was based ord disclose that plaintiff homestead waiver note. The obtained said during garnish- December month sued out a 1957 and the same against thereby Roquemore’s employer, ment Paul up ordinarily $200.60 tied in wages, Roque- due the defendant more. filing In March within four months from 1958, and both and service of оbtaining judg- and the of the adjudged against bankrupt. latter was a Roquemore, ment judgment in voluntary petition In his he listed the favor of the plaintiff claimed under also home- $200.60. stead and laws said also discharged bankrupt. made a dissolution bond. He was a referee, having been aside appointed, $200.60 no trustee
My opinion following is that this case is controlled de- cisions appellate In Snyder, courts: Barnes v. (2) (126 863), arising S.E. court said: “A. lien virtue of service of summons issued suit instituted against an insolvent defendant within four months prior to the filing in bankruptcy by defendant, who adjudged was bankrupt, is, subsec- f, void, tions c null and sincе existence and enforce- preference. ment of such a would work a Where such has been dissolved and the fund re- principal ceived who is the on defendant, the dissolution may bond, perpetual stay he nevertheless obtain judg- of a plaintiff upon ment him behalf of the the bond.” See also the cases cited headnote Barnes case. judgment being within four months of of the bank- surety ruptcy, the bond was released. See Alvaton Mer- cantile Co. v. Caldwell, E. Posey Oil &c. Ga. 44 it Rome
appeared judgment against Posey, adjudged who was based on a suit a homestead money, as did the сase the trustee note. In that less than and the court ruled here, $300, be set aside waiver note. See cannot Beaver, Arnwine Ga. also & court, held Barrett Caswell v. Dur it was *6 (5 ex
ham,
102), may
I think that § exemptions, prevent setting statutory homestead short money. of Dickens v. Breedlove, aside of See the case 34 Ga. (129 upon by holding App. 886), plaintiff, E. relied the. 459 S. money may aside, clearly be set appears not which case predicated promissory on a suit on containing waiver, against exemp- homestead note which this good. tion was not nothing contrary holding
There I am here is what judice Henley Stages sub the case v. Colonial South, 56 (193 App. 722 905), Gа. S. E. nor in v. Co., McLean G. T. Duke (97 95 Ga. 135 S. E. 2d 537), strongly both relied plaintiff. for the counsel must be turned over to the is said that bankrupt filing
by him distributed to all the creditors of
though
even
claims,
case where the
predicated upon
homestead or an
not
waiver.
Lyle
(200
Store, Inc.,
v. Roswell
Ga.
recent case of
187
386
702),
рroperty
apart
S. E.
court held:
“When the
as
bankruptcy
its
exempt,,
the court
exhausts
over
it remains
un
proceedings. Bell v.
bankruptcy
affected
Dawson Gro
cery
(48
120 Ga.
150);
628
S. E.
Saul v. Bowers, 155 Ga.
450
. Taylor
S. E. 86 and
v. Williams,
[117
citation]
(77
386).”
in will
598 apart by and set by the property then owned Georgia Prim, v. Ga. Securities Co.
bankruptcy court. See
(23
885)
(2)
Pass,
and Pass v.
The cases of 975) Beaver, 377, supra, Arnwine v. are E. contrary holding present I case, view judgments case. In these were homestead waivers. cases property may It has been held that be set аside as home- money arising property. Dearing stead on See sale & Maxey, Ga. Jordan Co. v. Loyal, Ga. 531. provisions of Code 51-601 providing that cash cannot
be set the bankrupt (not as a converted statutory exempted personal property) deal with statutory only. homesteads
The exhaustively written decision Morris Plan Bank of Simmons, Ga. 2d written *7 Chief Bell, (f) Justice held that: “Under section 67 Bankruptcy 1898, Act of as amended June filing of a in bankruptcy, followed an adjudication, does not automatically nullify obtained through a lien legal proceed- ings within four months before petition, suсh but lien merely voidable, and must be treated as un- valid, in an appropriate less it attacked manner the trustee in for bankruptcy acting the benefit of creditors, by some other person having as it under Bankruptcy Act.” ruling This not conflict with we what now hold. That garnishees was a case who had failed answer, creditor of the who held a homestead waiver note judgment. Supreme p. Court stated 166 of that same bankrupt may case “that invalidity assert its respects as apart exempt him as in the bankruptcy proceed- ings. Q. B. Chicago, & R. Hall, Co. U. S. 511 Ct. L. Ed. But the lien is not avoided for the benefit of the as save to his property or nulli- parties or third lienors respects other Nor are fied any right of the bankrupt, here with we concerned it does garnishees was him the debt owed to appear not com- Furthermore, he is exemption. him an apart to 24 F. 2d Shop, Rollins Boot I beliеve re plaining.” Certainly is not that case have taken. position sustains I holding. contrary my holding that, below erred in there
I think that ex- could not allow this trustee, if the were based in effect as ruling emption, thus note, homestead waiver of Fulton the Civil Court Division of Appellate ruling judge. of the trial approving erred should have been opinion that a new trial firmly am I granted.
37880. SLUSSER WILLIAMS.
Decided October