10 Ga. App. 498 | Ga. Ct. App. | 1912
(After stating the foregoing facts.)
1. It will be seen, from the evidence as above stated, that the Anderson Dry Goods Company was no party to the sale of its stock of goods to Shepherd Company; 'that this sale was made by Butler, acting for the creditors and by the consent of all the creditors, for the purpose of carrying out their agreement in the premises. The Anderson Dry Goods Company was not to receive any part of the proceeds from the sale of its stock of goods, and did not in fact receive a dollar of the money. It was all paid by Shepherd Company to Butler, and he prorated it according to the agreement
It is said, however, that the sale was fraudulent as to the creditors, under the act of 1903 (Civil Code of 1910, §§' 3226, 3227, 3228), and that the garnishee was liable, although it had paid out the funds. The general rule is as above stated, that the garnishee’s liability to the creditor of the principal defendant is conditioned upon his liability to the latter. In other words, a creditor can not reach by garnishment process any assets which his debtor could not recover from the garnishee. In Jaques & Tinsley Co. v. Carstarphen Warehouse Co., 131 Ga. 1 (62 S. E. 82), the exception to this rule is said to be where the garnishee is in possession of the effects of the defendant under a transfer fraudulent as to his creditors. “In such a case, though the defendant can maintain no action against the garnishee, yet a creditor of the defendant may subject the effects in the garnishee’s hands by garnishment.” And it is insisted that as the sale of the stock of goods belonging to the Anderson Dry Goods Company was “ in bulk,” it was void for want of compliance with the act of 1903, supra, and, therefore, Shepherd
2. Besides, we think that Stovall Company, by every principle of estoppel, was precluded from setting aside the sale made by Butler to Shepherd Company, or from breaking up the general settlement with the creditors. It had agreed to the sale. According to the evidence, it had aided Butler in making the sale as the representative of all the creditors. It had agreed to accept twenty-five cents in the dollar in settlement of its claim against the Anderson Dry Goods Company, and had also agreed that the sale should be made of the stock of goods through Butler to the Shepherd Company, and should mutually bind all the creditors. One creditor
3. The views above expressed render immaterial the objections raised as to the constitutionality of the act of 1903 — Civil Code (1910),. § 3336 et seq. Besides, this-eourt has previously certified to the Supreme Court the same constitutional objection, and the act has been fully sustained (Jaques & Tinsley v. Carstarphen, supra). There is nothing in the decision of the Supreme Court of the United States in the case of Bailey v. Alabama, 319 U. S. 339 (55 L. ed. 191), which contravenes the ruling of the Supremfe Court of this State in upholding the act in question.
Judgment affirmed.