Dottkrer v. Bowe

• Decision Date: 07 July 1890
• Citation: 11 S.E. 896,84 Ga. 769
• Parties: Dottkrer et al. v. Bowe et al.
• Court: Georgia Supreme Court

11 S.E. 896

84 Ga. 769

Dottkrer et al.

v.Bowe et al.

Supreme Court of Georgia.

July 7, 1890.

Counties—Liability to Garnishment.

A county cannot be garnished for a debt due to a person not an officer of the county, as this process against counties is not expressly authorized by statute, and it would be against public policy to hold that it was authorized by implication.

Error from superior court, Chatham county; Adams, Judge.

Chlsholm & Erwin and W. R. Leaken, for plaintiffs in error.

J. R. Sanssy, for defendants in error.

Blandford, J. The question in this case is whether a county is liable to be garnished under the laws of this state for a debt which it owes to a person not an officer of the county. Section 3536 of the Code, which prescribes how the summons of garnishment shall be issued and directed, says it shall be "directed to the person sought to be garnished." and no one else. There is no direct authority given in the Code to authorize a county to be garnished. This court held in the case of County v. Flynt, 80 Ga. 490, 6 S. E. Rep. 173, that "the liability of the county to be sued for damages is a statutory liability. There is no liability on the county for any cause whatever, except such as created by statute. Counties are not liable at common law, and it is for the reason that the several counties of the state are political divisions, exercising a part of the sovereign power of the state, and they cannot be sued except where it is provided by statute." Again, it is provided, in sections 506, 507, of the Code, that "the ordinaries must audit all claims against their respective counties, and every claim, or such part thereof as maybe allowed, must be registered, and he or his clerk must give the claimant an order on the treasurer for the same, and, in the order, he shall specifically designate upon what particular fund such order is drawn, and out of which payment is to be made." "All claims against counties must be presented within twelve months after they accrue or become payable, unless held by minors or other persons laboring under disabilities, who are allowed twelve months after the removal of such disability." In the case of Powell v. County, 71 Ga, 587, this court held that, where the requirement of section 507 had not been complied with, a nonsuit was properly awarded. So we think that the system provided by law for the payment of claims against counties must be adopted in all cases. We do not think that this system can be preserved by allowing counties to be garnished. Indeed we are satisfied from the preponderance of decisions by the courts of this country that a county cannot be garnished except where it is expressly authorized by statute. The same considerations that exempt officers of the national and state governments from the process of garnishment and the like, as far as the public funds intrusted to them are concerned, apply with equal force to counties and their officers. Counties are created for the purpose of government, and the administration of justice. In the case of Hunsaker v. Borden, 5 Cal. 290, it was held that "a county is not a person in any sense, —it is not a corporation. It cannot sue or be sued, except where specially permitted by statute; and such permission can be withdrawn or denied at any time the legislature may think proper. A county government is a portion of the state government, and the county debt created is a part of the public state debt, and, in the same manner as there is no remedy against the state, there may be none against the county. The sovereign cannot be sued, in...