Harvey v. Wright

• Decision Date: 21 October 1949
• Docket Number: No. 32653.,32653.
• Citation: 80 Ga.App. 232,55 S.E.2d 835
• Parties: HARVEY. v. WRIGHT et al.
• Court: Georgia Court of Appeals

55 S.E.2d 835

80 Ga.App. 232

HARVEY.

v.WRIGHT et al.

No. 32653.

Court of Appeals of Georgia,

Division No. 1.

Oct. 21, 1949.

Proceeding between W. V. Harvey and Ralph Wright, Jr., and others, involving the right under a money rule to a sum of money on which the latter parties had levied a distress warrant and on which Harvey had filed garnishment proceedings.

The Civil Court of Fulton County, Ralph McClelland, J., rendered judgment in favor of Wright and others and Harvey brings error.

The Court of Appeals, Sutton, C. J., affirmed, holding that a judgment in the garnishment proceedings adverse to Harvey and unappealed from created estoppel by judgment, that money may be taken in execution, and that the sum involved was properly awarded to Wright and others.

Syllabus by the Court.

1. The motions of the defendants in error are denied.

2. (a) Under the doctrine of res judicata a judgment by a court of competent jurisdiction in a former litigation between the same parties based upon the same cause of action as a pending litigation binds the parties or their privies to the extent of all matters put in issue or which under the rules of law might have been put in issue by the pleadings in the previous litigation.

(b) The doctrine of estoppel by judgment is somewhat different from the doctrine of res judicata and has reference to previous litigation between the same parties based upon a different cause of action, and there is an estoppel by judgment only as to such matters which were within the scope of the previous pleadings and were necessarily adjudicated in order for the previous judgment to be rendered, or as to such matters as are shown to have been actually litigated and determined.

(c) An estoppel as to Harvey, the plaintiff in error in the present proceeding to review a money rule, was created on the controlling issues by the judgment in the garnishment proceeding, and at the time of the trial of the present case in the lower court he was concluded from insisting upon any right or claim to the money superior to the garnishees, who with another whose claim is based upon their claim, were parties in the present case in the lower court, and are defendants in error in this court.

3. Money may be taken in execution, if in the possession of the defendant, or identifiable as his money.

4. Money rules are in the nature of equitable proceedings, and the rights of the respective claimants may be determined according to equitable principles.

5. Under the facts of this case as disclosed by the record and the principles of law applicable thereto, the lessors, the plaintiffs in the distress warrant proceeding, were entitled to the fund in question, and the trial judge did not err in so holding, irrespective of the reason assigned in his judgment.

G. S. Peck, Atlanta, for plaintiff in error.

Hewlett & Dennis, Atlanta, T. F. Bowden, Atlanta, Charles Barton, Atlanta, Florence H. Dendy, Atlanta, for defendants in error.

SUTTON, Chief Judge.

Northside Farmers Market, Inc., leased a tract of land on Peachtree Road in Fulton County from Ralph Wright, Jr., and E. M. Myers on May 27, 1947, for 40 years, effective September 1, 1947, and leased another tract of land on Grandview Avenue from Ralph Wright, Jr., E. M. Myers, and W. R. Cox on November 14, 1947, for 30 years, effective January 1, 1948. Under the terms of the lease for the Peachtree Road property the lessee deposited $1800 with the lessors, to be applied to the agreed rental at the rate of 10% or $30 per month for the first 5 years of the lease. Each lease has attached thereto an acknowledgment to the effect that it was rescinded by the lessors for nonpayment of rent on July 1, 1948; that the lessee claims no further right of possession; and that the clerk of Fulton Superior Court is authorized to enter the acknowledgment on the record of the lease. At the time of the rescission of the leases the lessors of the Peachtree Road property held in their possession $690 due the lessee after all rent had been paid on the property; and the lessee owed $675 for rent, plus interest, to the lessors of the Grandview Avenue property. On July 12, 1948, the lessors of the Grandview Avenue property, through their attorney, made affidavit that the lessee was indebted to them $675 for rent, plus interest, on the Grandview Avenue property, and a distress warrant was issued therefor by the clerk of the Civil Court of Fulton County. The warrant was executed by a deputy marshal of the court by levying upon and seizing the property of the defendant, to wit: "One envelope & contents pointed out by Plff. (RW. Jr.) Levied at 98 Central Ave., Atlanta, Ga. This 7-14, 1948." On the following day, July 15, 1948, William V. Harvey, the president of Northside Farmers Market, filed suit against said market in the Civil Court of Fulton County for $2700 unpaid salary for the months of January through June, 1948, and as president of the defendant corporation acknowledged service of the suit. Harvey then made affidavit, through his attorney, on July 21, 1948, for garnishment, based on the pending suit, and a summons was served upon J. M. George, marshal of the Civil Court of Fulton County, and upon Wright and Myers, the lessors of the Peachtree Road property. Northside Farmers Market, through its attorney, on July 26, 1948, in reply to the distress warrant, filed what at first was called an affidavit of illegality. This was subsequently amended, and finally it was denominated as a motion to dismiss the levy. The plaintiffs in the distress warrant proceeding demurred to this motion. On August 3, 1948, the chief judge of the civil court rendered judgment for Harvey for $2700 in his suit for unpaid salary. Wright and Myers filed an answer to the summons of garnishment on August 9, 1948, as follows: "1. At the time of the service of garnishment, garnishees had in hand no money, property or effects of the defendant. 2. Since the time of said service there has come into the hands of said garnishees no money, property or effects of the defendant. 3. Further answering, garnishees say that defendant corporation was indebted to them in the amount of $675, plus interest, which debt was due for rent on property on Grandview Avenue, 150 feet east of Peach-tree Road. That on July 12th, 1948, garnishees took out a distress warrant No. 135763 [155763?] in the Civil Court of Fulton County, which distress warrant was levied July 14, 1948, on property of the defendant corporation in the amount of $690.00, there being at that time in the hands of garnishees a fund in the amount of $690.00, on which said distress warrant was levied. 4. That the Marshall is holding said fund in the amount of $690.00 for the benefit of garnishees and as their agent and the agent of the Court. 5. That garnishees are, and were entitled under the laws of Georgia, to apply said fund in the amount of $690.00 to the payment of said indebtedness alleged in paragraph 3 of this answer." Harvey traversed this answer, admittingthe allegations of paragraphs 1 and 2, and denying the allegations of paragraphs 3, 4, and 5. George answered the summons for garnishment on August 26, 1948, as follows: "[1] On July 12, 1948, there was placed in the hands of Garnishee, for execution, a distress warrant issued in the Civil Court of Fulton County in case No. 155763, entitled Ralph Wright, Jr., E. M. Myers and W. R. Cox, Plaintiffs, versus North Side Farmers Market, Inc., Defendant, said distress warrant being in the sum of Six Hundred Seventy Five ($675.00) Dollars and interest, as rent for premises therein described, profert of said distress warrant being now made by Garnishee. [2] On July 14, 1948, J. D. Thomas, Deputy Marshal of said Court, having said distress warrant in hand for levy and execution, had pointed out to him by plaintiffs in said distress warrant, for levy thereon as the property of defendant in said distress warrant, the sum of Six Hundred Ninety ($690.00) Dollars in money, said money in the possession of plaintiff in said distress warrant. Whereupon, said Deputy Marshal seized and levied upon said money which was placed by plaintiff in an envelope, said Deputy Marshal making on said day an entry upon one envelope and contents, pointed out by plaintiff. [3] Said Garnishee, at the time of the service of said summons thus had in his hands said sum of Six Hundred Ninety ($690.00) Dollars for application to the execution issued upon said distress warrant, and plaintiff in said distress warrant has heretofore demanded that Garnishee apply said Six Hundred Ninety ($690.00) Dollars to the principal, interest and costs due upon said distress warrant. [4] Garnishee avers that under these circumstances it is his duty to apply said sum of money levied upon to the execution under said distress warrant, and said application will leave no over-plus; thus, there was in the hands of Garnishee no property, money or effects, subject to said garnishment. [5] Further answering said summons, Garnishee says that no money, property or effects of North Side Farmers Market, Inc. have come into his hands between the time of the service of said summons and the time of making this answer, and that Garnishee owed the defendants nothing at the date of service of this summons, and that Garnishee has become indebted to the defendant in no amount since the service of said summons." Harvey traversed this answer, admitting the same with the exception of the fourth and fifth unnumbered paragraphs (paragraphs 4 and 5, supra). On October 19, 1948, Thomas, the deputy marshal, filed a statement in reference to the distress warrant proceeding, in which he recited that if it were lawful for the entry of levy to be amended, he had no objection to an amendment, and that additional facts concerning the levy were as follows: "On July 14, 1948, said Deputy Marshal, having in his hand for levy and execution the distress warrant in this case, had pointed out to him by plaintiffs in said distress...