25 Ga. 297 | Ga. | 1858
By the Court.
delivering die opinion.
Was the Court right in overruling the rijo lion to dimiss fee attachment?
One of the grounds of the motion was, that stock in tMss
The answer to this question, depends on the import of the act of 156, “to authorize the issuing of attachments and garnishments,” &c; for, the 55th section of that act, repeals “all acts, arid parts of acts, upon the subject of attachments and garnishments.” Acts of 1856, 38.
By the 13th section of this act, the summons of garnishment, is to be “directed to any person who may be indebted to, or have property or effects, of the defendant, in tjjeir hands.”
By this section, then, it would seem, that all of the debts, property, and effects, of the debtor, are subject to garnishment.
But the 16th section says, “where thegarnishee appears and answers that he is indebted, or has property, or effects in his hands, belonging to the defendant in attachment, judgment shall be rendered against him, in favor of the plaintiff, for such acknowledged indebtedness, and the property and effects, whatever they may bo, shall be delivered into the hands of the Sheriff,” &c.
Where the answer is, (hat he is, “ indebted,” judgment is to bo entered against him, “for such acknowledged indebtedness,”
Is stock in this railroad such a debt, (“indebtedness,”) of the railroad to the stockholder, that a garnishing creditor of the stockholder, can enter up judgment for it, against the railroad? It is not; it is a debt which, the railroad dares not pay even to the stockholder himself; the road may pay him dividends on it, but that is all. See charter, section, 3, diets of 1850, 240; and charter of Central Railroad, Rule 7, (Pr. Dig. 330.)
The debt which a corporation owes to one of its stockholders for his stock, is a debt of a peculiar nature. It is a debt not to be paid, until the corporation comes to wind itself-up. When the corporation winds itself up, then it pays back
When will this corporation wind itself up ? It may never do so. Its charter sets no limits to the time of its existence. Pr. Dig. 333.
It follows, that the time may never come, when this corporation will be bound to pay back to the Rosses, the money it received from them for their stock. If so, of course, no judgment can be got against the corporation, requiring it to pay that money at any particular time; consequently, no judgment can be got against the corporation, under the said 16th section of the act, for the judgment it contemplates is one requiring immediate payment.
There is no other part of the act under which such a judgment can be got.
We may conclude, therefore, that although, the language of the 13th section of the act, is broad enough to include all debts, yet that the 16 th section of the act is such, as to require this language to .be so restricted, that it shall not include such a debt as this; a debt which a corporation owes to one of its stockholders, for the money received from him for his stock.
If dividends were due to the Rosses, the case would be different. Dividends, there is little doubt, stand on the same footing as ordinary debts due from the corporation to its stockholders.
The judgment that is needed in such a case as the present, is a judgment authorizing a sale of the stock. There is no law authorizing such a judgment in attachments or garnishments, 16 Ga. 437. There is a law making “bank and other stock, subject to execution.” Cobb, Dig. 511. But this law, does not reach the present case.
We think, then, that this stock of the Rosses, was not suk
It becomes useless to consider the other grounds of the motion.
Judgment reversed.
