125 Ga. 103 | Ga. | 1906
Fulford was sued in a justice’s court upon an account, and summons of garnishment was issued thereon against his employer, the Southern Railway Company. The garnishee answered that it was indebted to him in the sum of $49.30. Fulford was a p>arty to the suit and was properly served therein; yet he did not contest the action, and judgment was rendered against him for fifty dollars and costs. Judgment was subsequently- rendered against the garnishee, subjecting the amount that it had answered was due him. A fi. fa. was issued against the railway company, and it paid the money into court. Fulford did not attempt to appeal from either the judgment against him or the one against his employer, and he now brings this action against the railway company for the amount it paid into court, alleging that it was earned by him as a day laborer. The defendant, that is, the railway company,, in its plea relied upon the above-stated facts, and averred that although Fulford was a party to the proceedings against him in the
The only question for our decision in this case is whether or not the court erred in, sustaining the demurrer to the defendant’s plea. There are certain other assignments of error in the bill of exceptions, but they were not insisted upon in the argument or brief of counsel for plaintiff in error. The question which is here now for decision seems to Have been settled by the adjudications of this court and of other courts in harmony with it. In the case of Watkins v. Cason, 46 Ga. 444, the facts were, that Cason was the holder of the notes of Watkins, which were not due, secured by a mortgage. Before the notes became due -a judgment creditor of Cason issued a garnishment against Watkins and obtained a judgment against the garnishee for the amount of Cason’s debt to him (the creditor), which was less than the amount of the notes. After judgment against the garnishee, but before the notes fell due, they were set apart to Cason as personalty under the homestead laws. On the maturity of the notes the judgment creditor issued an execution against the garnishee (which was levied upon his property), who voluntarily paid the amount to the attorney of the judgment creditor. Before the maturity of the notes the garnishee had written notice that they had been set apart to the payee as personalty under the homestead laws. And it was held by the court that Cason “was entitled to foreclose the mortgage for the full amount of the notes. If the money has not passed beyond the control of the court, it should be ordered to be paid in satisfaction of the mortgage judgment in preference to the creditor’s judgment against the garnishee. If it has, [Cason] is entitled to have execution against the mortgaged property, the owner of which must look to those to whom he paid the money for remuneration.” No notice to the garnishee apprising it that the debt sought to be garnished was exempt was necessary. The garnishee knew that its indebtedness to Fulford was for tlie daily wages of a laborer, and that day-laborers, under the law, are exempt from the- process and liabilities of garnishment on their daily, weekly, or monthly labor. Civil Code, §473'2. While the garnishee might truthfully assert that it
Judgment affirmed.