54 Ga. App. 89 | Ga. Ct. App. | 1936
On November 19, 1934, W. L. Johnson filed suit against David L. St. John, returnable to the December term, 1934, of the municipal court of Atlanta; the suit being No. 72363, based on promissory notes. On November 19, 1934, Johnson had a summons of garnishment, based on said suit, served on the Constitution Publishing Company. The garnishee paid into court the sum of $63.05. On November 28, 1934, Johnson had an additional summons of garnishment, based on the same suit and bond, served on the same garnishee. On this summons the garnishee paid into court the sum of $129.32. St. John was adjudicated a bankrupt on December 12, 1934. Johnson filed a- motion to vacate the adjudication, which motion was overruled on April 11, 1935, and the bankruptcy proceedings are still pending. St. John filed in the municipal court a plea of bankruptcy, which was overruled; and on April 19, 1935, judgment in favor of Johnson was rendered for the full amount sued for. St. John excepted pendente lite to the overruling of his bankruptcy plea; and after a motion for new trial was overruled, an appeal was entered to the appellate division of the municipal court on April 27, 1935. On April 29, 1935, Johnson had a summons of garnishment based on the same judgment (now appealed) served on the same garnishee heretofore
This case is controlled by the decision in St. John v. Johnson, 54 Ga, App. 87 (187 S. E. 134), wherein it is held that it was not shown that the question of the defendant’s discharge in bankruptcy had been finally determined, and that the court erred in overruling the plea of bankruptcy and denying a stay of proceedings in the municipal court. But, in view of the garnishment transactions subsequent to the ruling of the trial judge in that case, a discussion of the issues in the instant case is deemed proper. It will be noted that the aggregate net amount impounded as a result of the first two garnishments is $192.37. The plaintiff admits that $116.14 of this sum is not subject to his claim, because it was earned by the defendant before his adjudication; but the plaintiff insists that the balance of $76.23 is subject, because earned by defendant after his adjudication, and that for the same reason the third garnishment, No. 82640, should not be dismissed. As shown above, the suit on which the garnishments were based, was filed just twenty-three days before the defendant’s adjudication in bankruptcy. “The provisions of section 67f of the bankruptcy act annulled any lien acquired by the garnishment proceedings, which were instituted within four months of the adjudication of the defendant as a bankrupt, and the funds impounded by such garnishment proceedings are wholly discharged and released from the same. 11 U. S. C. A., § 107 (f); Armour Packing Co. v. Wynn, 119 Ga. 683 (46 S. E. 865); Morris Fertilizer Co. v. Jackson, 27 Ga. App. 567 (110 S. E. 219); Barnes v. Snyder, 33 Ga. App. 501 (126 S. E. 863).” Roberts v. Seanor, 46 Ga. App. 5 (166 S. E. 375).
This is in accord with the purpose of the bankruptcy act. As stated in Gilbert v. Shouse, 61 Fed. (2d) 398, “The purpose of the bankruptcy act is two-fold, i. e., to permit' an honest debtor to start afresh, relieved from his burden of indebtedness, and to distribute -his assets equitably among his creditors.” To permit a creditor to acquire a lien by garnishment based on a judgment or a suit (for a debt which was scheduled in the bankruptcy proceedings) instituted within four months prior to the debtor’s adjudication as a bankrupt, would defeat both purposes of the bankruptcy act. In such event the debtor certainly would not be relieved of his burden of indebtedness; and such procedure would furnish opportunity for collusion to prevent an equitable distribution of his assets among his creditors by his giving certain creditors advance notice of Ms intention to take bankruptcy, and thus enable them to procure liens and become preferred creditors. In ease of involuntary bankruptcy, the collusion could be among a limited number of creditors to the detriment of the remaining creditors. Such a preference is not tolerated by the law. Barnes v. Snyder, supra;
Judgment reversed.