Eslinger v. Herndon

• Citation: 124 S.E. 169,158 Ga. 823
• Decision Date: 02 September 1924
• Docket Number: 4096.
• Parties: ESLINGER ET AL. v. HERNDON.
• Court: Supreme Court of Georgia

124 S.E. 169

158 Ga. 823

ESLINGER ET AL. v. HERNDON.

No. 4096.

Supreme Court of Georgia

September 2, 1924

Syllabus by the Court.

The complainant had a complete and adequate remedy by claim, and for this reason was not entitled to an injunction to restrain the sale of his property levied upon under an execution against the Herndon Motor Company; there being no allegation in the petition that the petitioner was the defendant in execution.

The petition made no case for cancellation of the bond given by the complainant in the name of the Herndon Motor Company, for the forthcoming of the property levied upon at the time and place of the sale.

The court below erred in overruling the demurrer to the petition.

A judgment rendered against a person in his assumed or trade name is not void.

The court erred in directing a verdict for the plaintiff.

Additional Syllabus by Editorial Staff.

Claimant may resist levy on ground that judgment on which fi. fa. is based is void.

Error from Superior Court, Whitfield County; M. C. Tarver, Judge.

Action by E. O. Herndon against Carl Eslinger and others. Judgment for plaintiff, and defendants bring error. Reversed.

Russell C.J., dissenting.

Wm. E Mann and W. Gordon Mann, both of Dalton, for plaintiffs in error.

J. A McFarland and F. K. McCutchen, both of Dalton, for defendant in error.

HINES J.

E. O. Herndon filed his petition against Carl Eslinger, Gordon Mann, and J. M. Weaver, in which he made these allegations: On March 7, 1923, J. M. Weaver, as constable, levied an execution in favor of Carl Eslinger against Herndon Motor Company, on petitioner's tools located in his garage on Gordon street in the city of Dalton, Ga., and forced him to sign a bond by the name of Herndon Motor Company, for the forthcoming of said tools, to prevent the closing of his garage and repair shop. This execution was issued upon a judgment entered against the Herndon Motor Company as garnishee in the case of Carl Eslinger against Henry Dollar, at the December term, 1922, of the justice's court for the 872d district of Whitfield county, Ga. No summons of garnishment was issued against petitioner, and he was not, at the time of the rendition of said judgment, indebted to Dollar in any amount whatever. The Herndon Motor Company is neither a natural nor artificial person, being neither a partnership nor a corporation; and the judgment and execution issued thereon are null and void, and the levy of the execution on his property is illegal. He prayed that Eslinger, Mann, as attorney for plaintiff in fi. fa., and the constable be enjoined from proceeding with the levy and sale of his property under said execution; that the judgment be set aside; that the bond petitioner signed be declared null and void and surrendered up and canceled; and for general relief.

The defendants demurred to the petition, on the grounds: (1) That it sets forth no cause of action; (2) that it sets forth no reason why an injunction should issue; (3) that plaintiff has a complete and adequate remedy at law, and (4) that there is no equity in plaintiff's petition. The trial judge overruled the demurrer, and the defendants excepted pendente lite to this judgment. They assign error on these exceptions in this court.

1-3. The case made by the petition is a simple one. An execution, which had issued upon a judgment rendered against the Herndon Motor Company, was levied upon the goods of E. O. Herndon, and the defendant was forced to give a bond for their forthcoming at the time and place of sale, in order for Herndon to retain possession of this property. Thereupon Herndon filed a petition against the plaintiff in execution, his attorney, and the levying constable to enjoin the sale of his goods under the levy, and to have canceled said bond for the forthcoming of this property at the time and place of sale. To this petition the defendants demurred on the grounds set out above. The question is, did the judge err in overruling the demurrer? Herndon had a complete and adequate remedy at law by claim, if he was not the defendant in execution, and, in such case, he was not entitled to an injunction to restrain the sale of his goods, under the levy of this execution against the Herndon Motor Company. Teasley v. Bradley, 110 Ga. 497, 35 S.E. 782, 78 Am.St.Rep. 113; Johnson v. Gilmer, 113 Ga. 1146, 39 S.E. 469; Douglas v. Jenkins, 146 Ga. 341, 91 S.E. 49, Ann.Cas. 1918C, 322; Williams v. Smith, 148 Ga. 615, 97 S.E. 670. A claimant may resist the levy on the grounds that the judgment upon which the fi. fa. is based is void. Wheeler v. Martin, 145 Ga. 164, 88 S.E. 951.

The only other relief which the plaintiff seeks is that of the cancellation of the bond for the forthcoming of this property at the time and place of sale. It does not require argument or citation of authorities to demonstrate that the plaintiff makes no case for cancellation. The demurrer to the petition should have been sustained, and the petition dismissed. The case proceeded to trial, and the evidence disclosed these facts: E. O. Herndon did business under the trade-name of Herndon Motor Company. Eslinger sued Dollar in the justice's court, and sued out a summons of garnishment directed to the Herndon Motor Company, which was served personally upon Herndon. No answer was made to the summons. Judgment was rendered in the justice's court against Dollar; and thereafter a judgment was rendered by default against the Herndon Motor Company. Execution issued upon this judgment against the Herndon Motor Company, and was levied upon goods belonging to E. O. Herndon. In order to keep possession of these goods, Herndon was required by the levying constable to give a bond for their forthcoming at the time and place of sale. This he did. Herndon was not indebted to Dollar at the time the summons of garnishment was issued.

At the conclusion of the evidence, the judge directed a verdict in favor of the plaintiff, holding that the judgment against the Herndon Motor Company, the same being neither a partnership nor a corporation, was void; and that Herndon, not having been sued as such, was not liable under the judgment rendered against the Herndon Motor Company. Thereupon the defendants moved for a new trial on the grounds: (1) That the court erred in permitting Herndon, over objection of counsel for the defendants, to testify that the goods levied on were his the objection being that this evidence was immaterial and irrelevant, as petitioner had a remedy at law by claim, and because the only question involved was whether the judgment was legal; (2) that the court erred in allowing Herndon, over objection of counsel for the defendants, to testify that he did not owe Dollar anything at the time of the summons of garnishment, on the ground that this evidence was immaterial and irrelevant; and (3) that the court erred in holding that the judgment against the Herndon Motor Company was void because it was neither a partnership nor a corporation, and that...