56 Ga. App. 671 | Ga. Ct. App. | 1937
On September 1, 1936, Clare & Company obtained judgment against Eyder on a note, containing a waiver of homestead exemption rights. On September 21, 1936, said company filed in the municipal court of Atlanta an affidavit and bond
1. Ordinarily, under 67f of the bankruptcy act, any lien acquired by garnishment proceedings instituted within four months of the adjudication of the debtor as a bankrupt is annulled by such adjudication, and funds impounded thereby are released. Roberts v. Seanor, 46 Ga. App. 5 (6) (166 S. E. 375); Saint John v. Johnson, 54 Ga. App. 87 (187 S. E. 134); Armour Packing Co. v. Wynne, 119 Ga. 683 (46 S. E. 865).
3. The facts of this case do not bring it within the rulings made in Roberts v. Seanor, supra, and similar cases; and by parity of reasoning, under the ruling in Equitable Credit Co. v. Miller, 164 Ga. 49 (137 S. E. 771), and other cases herein cited, the dissolution bond taking the place of the funds impounded by the garnishment process, the adjudication and discharge in bankruptcy in this ease does not prevent the judgment being rendered against the surety on the bond, such funds being set apart to the debtor as his homestead exemption by the bankruptcy court. See also Anderson v. Ashford, 174 Ga. 660 (163 S. E. 741).
4. Nor would the bankrupt in this case, as against the judgment on the note containing a homestead waiver and as to funds or property set apart as exempt in the bankruptcy court, being funds also impounded by garnishment in the trial court, based on such a judgment, and which had been due the bankrupt as wages by the garnishee, be entitled to plead his adjudication in bankruptcy and obtain a stay of the garnishment proceedings in the trial court. See Dickens v. Breedlove, supra.
5. It is not necessary that the judgment plaintiff resort to a eoirrt of equity in order to subject the funds impounded by the garnishment in this case, which funds had been set apart to the bankrupt debtor as a homestead exemption. The municipal court
6. Applying the above rulings, the judgment for plaintiif was proper, and no error of law,appears. The judgment of the appellate division of the trial court, affirming the overruling of defendant’s motion for new trial, was not error.
Judgment affirmed.