Elbert Sales Co. v. Granite City Bank

• Decision Date: 14 May 1937
• Docket Number: 26139.
• Parties: ELBERT SALES CO. v. GRANITE CITY BANK et al.
• Court: Georgia Court of Appeals

192 S.E. 66

55 Ga.App. 835

ELBERT SALES CO. v. GRANITE CITY BANK et al.

No. 26139.

Court of Appeals of Georgia, First Division

May 14, 1937

Syllabus by the Court.

1. The exemption from garnishment provided by section 3 of the Act of Congress approved August 12, 1935, 49 Stat. 609 (38 U.S C.A. §§ 54 note, 454 note, 454a), relating to World War veterans in respect to "payment of benefits," extends to money received from the United States by a veteran as "payment of benefits," and deposited by him in the bank; but is otherwise as to property purchased with such "payment of benefits." McCurry v. Peek, 54 Ga.App. 341, 187 S.E. 854.

2. Funds of the World War veteran being exempt from garnishment the garnishee, as was done in the answer, should have set up the fact of exemption. Watkins v. Cason, 46 Ga. 444; Southern Ry. Co. v. Fulford, 125 Ga. 103, 104, 54 S.E. 68, 5 Ann.Cas. 168; Emmons, McKee & Co. v. Southern Bell Tel. & Tel. Co., 80 Ga. 760, 761, 7 S.E. 232; Rood on Garnishments, 116, § 85.

3. In grounds 2 and 3 of the amended traverse, plaintiff in error seeks to attack the constitutionality of the exemption. This question is not properly raised for consideration in that the act sought to be declared unconstitutional is not set forth. Anderson v. State, 2 Ga.App. 1 (1-a), 58 S.E. 401.

Error from City Court of Elberton; Raymond Stapleton, Judge.

Garnishment proceeding by Elbert Sales Company against the Granite City Bank. To review a judgment for the garnishee, plaintiff in garnishment brings error.

Affirmed.

Peyton S. Hawes and Z. B. Rogers, both of Elberton, for plaintiff in error.

W. D Tutt and Clark Edwards, Jr., both of Elberton, for defendant in error.

MacINTYRE Judge.

The World War veteran deposited his "payment of benefit" check in the bank and he (the defendant) did not have any funds on deposit with said bank at the time of making the deposit of his "payment of benefit" check, nor has he deposited other funds with said institution since making said deposit. Section 3 of the Act of August 12 1935, 49 Stat. 609 (38 U.S. C.A. §§ 54 note, 454 note, 454a) provided: "Payments of benefits due or to become due shall not be assignable, and such payments made to, or on account of, a beneficiary under any of the laws relating to veterans shall be exempt from taxation, shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary. Such provisions shall not attach to claims of the United States arising under such laws nor shall the exemption herein contained as to taxation extend to any property purchased in part or wholly out of such payments. Section 4747 of the Revised Statutes and section 22 of the World War Veterans' Act, 1924, are hereby repealed, and all other Acts inconsistent herewith are hereby modified accordingly. The provisions of this section shall not be construed to prohibit the assignment by any person, to whom converted insurance shall be payable under title III of the World War Veterans' Act, 1924, of his interest in such insurance to any other member of the permitted class of beneficiaries." It is under this act that the garnishee, the bank, claims the exemption of the funds of the veteran sought to be garnisheed by a creditor. The plaintiff in error contends that "this being a general deposit in a bank, the relationship of debtor and creditor arose, and the deposit lost its identity and ceased to be property originally exempt," and that it was subject to garnishment. Bouvier's Law Dictionary defines "deposit" thus: "A naked bailment of goods to be kept for the depositor without reward, and to be returned when he shall require it. Jones, Bailm. 36, 117; Bellows Falls Bank v. Bank, 40 Vt. [377] 380. A bailment of goods to be kept by the bailee without reward, and delivered according to the object or purpose of the original trust. Story, Bailm. § 41; Richardson v. Futrell, 42 Miss. [525] 544. A contract by which one of the...