Holmes & Co. v. Pope & Fleming

• Decision Date: 01 March 1907
• Docket Number: 55.
• Parties: HOLMES & CO. v. POPE & FLEMING.
• Court: Georgia Court of Appeals

58 S.E. 281

1 Ga.App. 338

HOLMES & CO. v. POPE & FLEMING.

No. 55.

Court of Appeals of Georgia

March 1, 1907

Syllabus by the Court.

Subject to a few exceptions (as, for instance, as to torts which a garnishee may have committed against a defendant), a judgment creditor may be garnishment acquire a control over the choses in action of the defendant, and thereby in effect bring suit against his debtor's debtor; and, though by garnishment the creditor may stand in the debtor's shoes as to choses in action, he enjoys the privilege cum onere.

For the converse is likewise true: "Creditors cannot reach by garnishment any assets which the debtor himself could not recover from the garnishee." Tim v. Franklin, 13 S.E. 259, 87 Ga. 95. "What one cannot recover himself cannot be recovered by garnishment against him." Bates v. Forsyth, 69 Ga. 365.

Consequently as to a fund in the hands of a garnishee to be advanced under a contract and in pursuance thereof and held for one special purpose only, as the debtor cannot compel its payment to other purposes foreign to the contract, neither can the garnishing creditor extend his rights beyond those of the defendant.

[Ed Note.-For cases in point, see Cent. Dig. vol. 24 Garnishment, §§ 94, 102-104.]

As to assets in the hands of a garnishee belonging to a nonresident of this state, such garnishee is entitled to set off any indebtedness owed by said nonresident defendant in garnishment, even though such indebtedness be not due. The question as to whether such garnishee is or is not indebted to the nonresident defendant, or has assets of such defendant in his hands, should be ascertained by a comparison of their respective claims, and answer made accordingly. Civ. Code 1895, § 3755.

[Ed Note.-For cases in point, see Cent. Dig. vol. 24, Garnishment, §§ 255-259.]

Error from City Court of Richmond County; Eve, Judge.

Action by Holmes & Co. against A. M. Calhoun, with garnishment on Pope & Fleming. Judgment for garnishees, and plaintiffs bring error. Affirmed.

C. P. Pressley, for plaintiffs in error.

W. H. Fleming, for defendants in error.

RUSSELL J.

Holmes & Co. sued out an attachment against A. M. Calhoun as a nonresident, and served a summons of garnishment on Pope & Fleming, who filed an answer denying the indebtedness. The plaintiffs in attachment traversed the answer of the garnishees, and at the conclusion of the evidence the court directed a verdict in favor of the answer of the garnishees and against the traverse of the plaintiffs. The plaintiffs made a motion for new trial, which was overruled, and the overruling of this motion is the error assigned here.

A motion to dismiss the writ of error was duly presented here, and will be first considered. The motion is as follows: (1) "Because there is no sufficient assignment of error, the only assignment of error being the following recital in the bill of exceptions, namely: 'To which order of Judge Eve, overruling said motion [for new trial] and denying said new trial, the said John F. Holmes & Co. did then and there except and assign the same as error.' From their recital it does not appear upon which one or more of the grounds of motion for a new trial assignment of error is predicated, nor does it appear that plaintiff in error made any exception to the said ruling at the time of presenting the bill of exceptions." (2) Because the grounds of motion for new trial were certified as true, "subject to correction at the hearing," and it does not appear that said grounds were subsequently approved without qualification. (3) Because the brief of evidence contains only a brief of the oral testimony, and does not embrace in any form any of the written documentary evidence introduced at the trial; the said written documentary evidence being included as part of the transcript of the record, and not in the brief where it legally belonged.

We find no merit in this motion. The assignment of error is sufficient under numerous rulings of the Supreme Court. "A motion for a new trial being based upon several grounds distinctly set forth therein, an assignment of error in a bill of exceptions that the court erred in overruling the motion is sufficiently plain and specific in setting forth the errors complained of, under the act of November 11, 1889." Gray v. Phillips, 88 Ga. 199, 14 S.E. 205.

See, also, Hardison v. Burr, 73 Ga. 125; Erskine v. Duffy, 76 Ga. 602; Futch v. State, 90 Ga. 472, 16 S.E. 102. The second ground for motion to dismiss is because the grounds of the motion for new trial were certified as true, subject to correction at the hearing. This ground of motion to dismiss is obliterated by the positive statement in the bill of exceptions that the recitals of fact contained in the motion for new trial are true and correct. There is no merit in the third ground of the motion to dismiss. While the documentary evidence should always be briefed, it appears from the approved brief of evidence that the rule was substantially complied with in this case. And it is "unlawful *** to dismiss any case for any want of technical conformity to the statutes or rules regulating the practice, *** where there is enough in the bill of exceptions or transcript of the record presented, or both together, to enable the court to ascertain substantially the real questions in the case," etc. Civ. Code 1895, § 5569. In this case the full copies may be treated as mere surplusage. Rudolph v. Underwood, 88 Ga. 665, 16 S.E. 55 (9). "Where the bill of exceptions and the judge's certificate both conform to the act of 1889 for bringing cases to this court, and the error complained of is the overruling of a motion for new trial, the writ of error will not be dismissed because this court may be of opinion that some parts of the record specified are not material."

For another reason the motion to dismiss is not well taken. "It appears that the brief was agreed upon as correct by counsel for both the movant and the respondent in the motion for a new trial, and the bill of exceptions states affirmatively that this brief was approved by the court and ordered filed. The record also discloses that the motion for a new trial was heard and determined without objection of any kind to the brief of the evidence. In other words, it was, at the hearing, treated by the respondent as coming up to all the legal requirements. In view of these facts, it was too late for him, after the motion for a new trial had been heard upon its merits, to raise any question as to the form of the brief, or to make...