DECIDED DECEMBER 5, 1952. REHEARING DENIED DECEMBER 19, 1952.
Garnishment; from Hall Superior Court — Judge Edmondson. August 9, 1952.
Telford, Wayne Smith, for plaintiff in error.
E. C. Brannon, R. W. Smith Jr., Sam S. Harben, contra.
1. Where the name of the garnishee was not inserted in a summons of garnishment before the justice of the peace signed the summons, but where the garnishee's name was inserted in the summons by the attorney at law for the plaintiff before it was served on the garnishee, said attorney having been authorized so to do by the justice of the peace when he issued the summons, the garnishment proceeding was not void, as asserted in the garnishee's special plea, and it was error to sustain this plea.
2. When the summons of garnishment was served upon the garnishee, the lien of the garnishment proceeding was effective and reached the amount of the price which the garnishee had bid for the defendant's property at an auction sale, less the amounts of prior liens or titles outstanding against the defendant's property which the garnishee had discharged, and the garnishee could not defeat such lien by issuing a note to the defendant for the balance of the price after the summons of garnishment was served.
3. The exclusion of evidence of one of the prior liens against the defendant's property sold to the garnishee was not prejudicial as against the garnishee.
4. The evidence does not support the finding in favor of the garnishee, and it was error to overrule the plaintiff's motion for a new trial.
DECIDED DECEMBER 5, 1952 — REHEARING DENIED DECEMBER 19, 1952.
Gainesville Feed and Poultry Company Inc. filed suit in Hall Superior Court against Grover C. Reed on October 9, 1950, and, in aid of this pending suit, on the same day made an affidavit and bond for garnishment before a justice of the peace. The justice of the peace executed and signed a summons of garnishment in which the name of the garnishee was omitted and gave the summons to the plaintiff's attorney with permission to insert the name of the garnishee when the plaintiff's attorney, intending to garnish the purchaser of the defendant's property at auction, found out who that purchaser would be.
The defendant in the main suit, Grover C. Reed, had previously conveyed title to certain real property which he owned to C. E. Vaughan to secure a debt of $1500, and Vaughan had transferred the note and deed to secure debt to the Citizens Bank of Gainesville. Reed had also made a second conveyance of his property to Lawson White Lumber Company to secure a debt of $272.50, and had executed another note to Vaughan for $500 in which it was recited that payment was to be secured by the first conveyance to Vaughan. All of these transactions took place before October 9, 1950.
Grover C. Reed, the defendant, had advertised his property for sale at an auction which was held on October 10, 1950, and the terms of the sale had been advertised as one-half cash down and the balance payable January 1, 1951. On the morning of October 10, the plaintiff's attorney and a constable of the justice court which had issued the summons attended the auction sale, at which Reed's property was sold to Paul D. Waters for $4500. The plaintiff's attorney then filled in Waters's name on the summons of garnishment and gave the completed summons to the constable, who handed it to Waters, entered a return of service upon the affidavit and bond, and returned the affidavit and bond to Hall Superior Court.
When the summons was served, the agents in charge of the sale were asking Waters to sign a binder check and were handing him other papers; others in the crowd were congratulating Waters on his purchase, and Waters was excited. Waters testified that he never saw the summons and knew nothing of it until about October 20. Meanwhile, Waters paid a binder of $225 at the auction, borrowed on his own place to make a payment of $2025 on the price, which was applied on the debts outstanding against the property purchased, and gave a note and security deed to Reed for $2250 as the balance of the price due on January 1, 1951. Reed conveyed his property by warranty deed to Waters. These transactions took place on the afternoon of October 10, after the sale and after the summons of garnishment had been served upon Waters. On October 16, Reed assigned to the Citizens Bank the note and security deed given by Waters for the balance of the price. Judgment in the main suit for $1206.75 was rendered for the plaintiff against Reed on January 31, 1951.
Waters, the garnishee, filed a traverse of the return of service and a special plea challenging the legality of the garnishment proceeding on the ground that the summons had been issued without being directed to the person sought to be garnished; he also answered, denying any indebtedness to Reed. The plaintiff traversed the answer of the garnishee, and the case was tried before the Judge of Hall Superior Court without a jury. The evidence was without material conflict and showed the facts to be substantially as stated above. The judge found in favor of the garnishee on his traverse and special plea. The plaintiff's motion for a new trial, on the general grounds, was overruled, and the plaintiff excepted. By a cross-bill, the garnishee excepted to the exclusion from evidence of the note for $500 made by Reed to Vaughan.
1. A summons of garnishment is the process that brings the garnishee into court, and in this respect is like process in an ordinary suit, its purpose being to give notice to the garnishee of the plaintiff's claim upon the defendant's property in the garnishee's possession or upon the garnishee's indebtedness to the defendant. Henderson v. Mutual Fertilizer Co., 150 Ga. 465 ( 104 S.E. 229). A substantial compliance with the requisites of the Code, with respect to the issuing and serving of process, will be sufficient, and, where notice is given, no technical or formal objection shall invalidate any process. Code, § 81-220.
The first question to be determined is whether the summons of garnishment was valid, where the name of the garnishee was not inserted therein before the justice of the peace signed the summons, but where the garnishee's name was inserted in the summons by the attorney at law for the plaintiff before it was served on the garnishee, said attorney having been authorized to do so by the justice of the peace when he issued the summons.
Code § 46-105 provides in part: "When such affidavit shall have been made and bond given, it shall be the duty of the officer before whom the same was made, or any other officer authorized to issue attachments, to whom the said bond and affidavit may be delivered, upon the request of the plaintiff or his agent or attorney at law to issue a summons of garnishment, directed to the person sought to be garnished, requiring him to appear at the next term of the court where such suit is pending, or where such judgment was obtained." Thus in garnishment proceedings, when an affidavit has been made and bond given, it is the duty of an officer authorized to issue attachments to whom such bond and affidavit may be delivered to issue a summons of garnishment at the request of the plaintiff or his attorney. While the summons must be signed by the authorized officer issuing it ( Stephenson v. Campbell, 30 Ga. 159), writing the name of the garnishee in the summons, as requested by the plaintiff, is not a judicial duty of the issuing officer, as he is given no discretion in the matter; but it is a ministerial duty, which may be performed by someone else who is authorized by the issuing officer to fill in the name of the garnishee, as was the plaintiff's attorney in this case.
The name of the garnishee need not be stated in the affidavit for garnishment. Owsley v. Woolhopter, 14 Ga. 124 (2). The garnishee's name is entered in the summons upon the request of the plaintiff or his attorney, and the return of service by the officer serving the summons is entered on the affidavit and bond which authorizes the summons to be issued. As a matter of record, it is the return of service by the officer serving the summons which means that the summons directed the garnishee to file his answer in the court in which the suit was pending. O'Neill Mfg. Co. v. Ahrens Ott Mfg. Co., 110 Ga. 656 (1) ( 36 S.E. 66). It is not contended that the return of service was irregular or incomplete in any way, and the return of service is conclusive as to the identity of the person to whom the summons of garnishment was directed. Gibbs v. Rhodes Furniture Co., 58 Ga. App. 352 ( 198 S.E. 315). The summons of garnishment was complete and regular upon its face when served, and was not void.
Furthermore, the issuance of the summons of garnishment in this manner was a substantial compliance with the provisions of Code § 46-105, supra. "A substantial compliance with any requirement of the Code, or laws amendatory thereof, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by the enactment." Code, § 102-102 (6). Section 46-105 does not provide that a garnishment proceeding shall be void if the officer himself has not written the name of the garnishee upon the summons before or when he issues it.
Anderson v. Ledbetter-Johnson Contractors, 62 Ga. App. 732 ( 9 S.E.2d 860), is relied on by the garnishee for the proposition that a summons not directed to any particular person, firm or corporation is void. In that case, the summons served was directed to "Garnishee," and the name of the person sought to be garnished was never entered upon the summons, while in the present case, the garnishee's name was written upon the summons before it was served and with the consent of the officer issuing the summons. The garnishment proceeding was not void, as asserted in the garnishee's special plea, and it was error to sustain this plea.
2. Code § 46-203 provides, in part, as follows: "The service of a summons of garnishment shall in all cases operate as a lien on all the garnishee's indebtedness at the date of the service and also on all future indebtedness accruing up to the date of the answer, and such lien shall not be defeated by any payments by the garnishee or overdrafts by the defendant or other arrangements between the defendant and the garnishee." While it may be true that this statute has for its purpose the prevention of fraud and collusion between the defendant and the garnishee, it does not follow, as contended by the garnishee, that its operation depends upon a showing of fraud and collusion. Nor does this Code section provide that the lien of the garnishment proceeding shall become effective when the garnishee knows, subjectively, about the garnishment proceeding, as contended by the garnishee; such lien becomes operative when the summons of garnishment is served and when actual notice is thereby given.
As stated in J. Austin Dillon Co. v. Edwards Shoe Stores, 53 Ga. App. 437, 439 ( 186 S.E. 470): "However, the garnishment cannot reach assets in the possession of the garnishee which the defendant himself could not recover from the garnishee. Southern Amusement Co. v. Neal, 15 Ga. App. 130 ( 82 S.E. 765). The garnishee is bound by existing liens, etc., on the property in his hands; and while the garnishment law is to prevent evasions and subterfuges, it does not intend to violate existing contracts or restrain the right to contract. It is only intended to reach something actually due the defendant and which he could recover himself."
In the present case, the garnishee Waters, who purchased Reed's property, was willing to accept such title as Reed was able to convey and to pay Reed the bid price of $4500 less the sum of $2272.50, which was the total of the liens against the property paid off by Waters. The garnishee contends that by the payment of these liens he became subrogated to the rights of the lienholders, which were prior to those of the plaintiff's garnishment lien upon the amount to be paid for the property by Waters. This contention reaches the same result as does the principle of granting the purchaser compensation for the defects in the vendor's title: the garnishee has a right to set off against the price which he owes the defendant the amount necessary to clear the liens against the property sold, and such amount was not subject to the garnishment proceeding.
However, the balance of the price which was due on January 1, 1951, was subject to the garnishment lien, and this amount exceeded the amount of the judgment which the plaintiff obtained against the defendant. Where the garnishee chooses to liquidate the debt to the defendant by giving him a note after the service of the summons of garnishment, the garnishee will not be protected should the note be acquired by a bona fide holder in due course, nor can he defeat the lien of the garnishment proceeding by such an arrangement after service of the summons. Legg v. Spratlin, 37 Ga. App. 392 (2) ( 140 S.E. 518); Yaarab Temple Bldg. Co. v. Carmichael Tile Co., 45 Ga. App. 542 ( 165 S.E. 319). Under the facts as shown by the uncontroverted evidence, it was error to find in favor of the garnishee.
3. The refusal of the trial judge to admit in evidence the note from Reed to Vaughan for $500, as complained of in the cross-bill of exceptions, if error, was not prejudicial to the garnishee, since it would have had no effect upon the outcome of the case whether it was admitted or not. The amount of the price which the garnishee owed to the defendant after paying off all liens against the property, including the one contended to have been represented by the note excluded from evidence, was greater than the amount of the judgment obtained by the plaintiff against the defendant.
4. The evidence does not support the finding of the trial judge in favor of the garnishee, and it was error to overrule the plaintiff's motion for a new trial.
Judgment reversed on the main bill of exceptions (number 34311), and affirmed on the cross-bill (number 34312). Felton and Worrill, JJ., concur.