Lears v. Seabd. Air Line Ry

Decision Date14 February 1908
Docket Number(No. 690.)
Citation3 Ga.App. 614,60 S.E. 343
PartiesLEARS. v. SEABOARD AIR LINE RY.
CourtGeorgia Court of Appeals
1. Attachment—Nature of Remedy—Statutory Provisions—Construction Upholding Constitutionality.

The act of the General Assembly approved August 20, 1906 (Acts 1906, p. 120), providing that the writ of attachment shall not be used to subject in this state wages of nonresidents which have been earned wholly without the state, is applicable to proceedings pending in our courts at the time it went into effect, and which at that time had not been reduced to judgment.

(a) Prior to the passage of the act of 1906, the plaintiff sued out an attachment against a nonresident, and had it levied by serving summons of garnishment on a debtor of the nonresident who resided in this state. The answer of the garnishee admitted an indebtedness to the nonresident for wages earned wholly without the state. This answer was traversed and came on for a hearing after the act of 1906 became effective. It was admitted that the facts set up in the answer of the garnishee were true. The justice of the peace rendered judgment against the garnishee. Held, it was not error for the judge of the superior court to sustain a petition for certiorari complaining of this judgment.

(b) When a statute is capable of two constructions, one making it violative of the Constitution, and the other making it consonant therewith, the latter construction will if possible be adopted. In holding that the above statute was intended to apply to pending proceedings which had not reached final judgment, the constitutionality of the law is not imperiled upon the ground that such a construction makes it interfere with vested rights, because until final judgment against the garnishee the plaintiff does not acquire a vested right to the funds impounded.

2. Justices of the Peace—Certiorari—Review—Scope.

At the hearing of a certiorari no other errors shall be insisted upon in the argument by counsel, or passed upon by the court, than those which are stated in the petition and answer.

(a) A statement in the answer of the justice that "it was urged by the counsel for defendant in certiorari * * * that said act was unconstitutional" is not sufficient to invoke a ruling by the judge of the superior court as to the constitutionality of the statute.

(b) It was proper for the judge of the superior court to refuse to consider a special request, filed by counsel for the defendant in certiorari at the hearing in the superior court, containing various grounds of attack on the constitutionality of the statute, inasmuch as such a document was not a part of the petition or answer.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, § 807.]

3. Writ op Error—Presentation and Reservation of Grounds op Review—Matters Not Presented.

Where it is apparent that the question as to the constitutionality of an act of the General Assembly was not properly made in the court below, this court will not certify such question to the Supreme Court for instruction.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

C. T. Lears sued out an attachment in a justice's court against one Causey, a nonresident, and had the same levied by serving summons of garnishment on the Seaboard Air Line Railway. The justice gave judgment against garnishee and garnishee sued out certiorari, and, from the judgment of the superior court holding the fund garnished not to be subject to the attachment, Lears brings error. Affirmed.

E. S. Lumpkin, for plaintiff in error.

W. Carroll Latimer, for defendant in error.

RUSSELL, J. In June, 1906, Lears sued out an attachment in a justice's court in Atlanta against Causey, a nonresident, and had the same levied by serving summons of garnishment on the Seaboard Air Line Railway. In July the garnishee answered that it was Indebted to the defendant for wages earned, due, and payable in the state of North Carolina. At the hearing which took place in November, 1900, the grounds of the attachment and also the facts set forth in the answer of the garnishee were admitted to be true. The garnishee relied on the act of the Legislature approved August 20, 1906 (Acts 1900, p. 120), by which the act of 1904 (Acts 1904, p. 100) was amended so as to read as follows: "Be it enacted by the General Assembly of the state of Georgia, that from and after the passage of this act, when any suit is brought by attachment in this state against a nonresident of the state, and the attachment is levied by service of summons of garnishment the situs of any debt due by the garnishee to the defendant shall be at the residence of the garnishee in this state, and any sum due to the defendant in attachment shall be subject to said attachment; provided, that the writ of attachment shall not be used to subject in this state wages of persons who reside out of the state, and which have been earned wholly without the state of Georgia." The amendment made by this act was the addition of the words contained in the proviso. The justice of the peace decided that the amendment of 1906 was not applicable to cases which were pending at the time of its passage, and entered judgment against the garnishee. The garnishee sued out certiorari. The bill of exceptions to this court complains of the judgment of the superior court sustaining the certiorari.

The controlling question before this court is whether or not the Legislature intended the amendment of 1906 to apply to cases pending at the time of its passage and approval, but which at that time had not been reduced to judgment A correct answer to this question necessitates a consideration of the state of the law at the time the amendment was passed, and the mischief which it was intended to prevent or remove. "Forthis purpose the court should put itself In the place, at the time of its enactment, of the Legislature which passed it, investigating the then existing state of the common or statutory law on the subject, contemporaneous circumstances, and the external or historical facts which led to its enactment, and make such application of the provisions of the statute as will best promote the object of the legislation." 26 Am. & Eng. Enc. of Law (2d Ed.) 632; Erwin v. Moore, 15 Ga. 361; Western & Atl. R. Co. v. State of Georgia (W. & A. Railroad Commission, 1891), 14 L. R. A. 446; United States v. Union Pac. Ry. Co., 91 U. S. 71, 23 L. Ed. 224 (4); People v. Columbia County, 134 N. Y. 13, 31 N. E. 322. What, then, was the condition of our law at the time of the passage of the amending act of 1906, and what was the mischief which it was intended to prevent or remove? Our Supreme Court had by repeated decisions established the rule that the situs of a debt for the purposes of garnishment was at the domicile of the creditor, and that such debt could not be attached in this state. Central Ry. Co. v. Brinson, 109 Ga. 354, 34 S. E. 597, 77 Am. St. Rep. 382. For the purpose of changing this rule the General Asssembly passed the act which was approved August 13, 1904 (Acts 1904, p. 100), the effect of which was to change the rule which had previously existed. Harvey v. Thompson, 128 Ga. 147, 57 S. E. 104, 9 L. R. A. (N. S.) 765 (2). The remedy given by this statute denies to nonresident wage earners the exemptions which are accorded to our own citizens. For example, the "monthly wages of a locomotive engineer" who is domiciled in Georgia are exempt from the process of garnishment (Smith v. Walker, 119 Ga. 615, 46 S. E. 831); but, if such locomotive engineer happens to be a nonresident, engaged exclusively in work beyond the borders of Georgia and residing in a sister state with his family, his creditors in that state can come into our courts and subject his wages to the payment of any debt. Harvey v. Thompson, supra. In other words, this statute creates a remedy which can be used by nonresidents for the collection of debts contracted, due, and payable in other states, and owing to them by citizens of such states, when no such remedy is afforded by their domestic law. Harris v. Balk, 198 U. S. 215, 25 Sup. Ct. 625, 49 L. Ed. 1023. For instance, wages which are exempt from garnishment in Florida where they are earned, due, and payable are not exempt in a suit in our courts by a Florida creditor against a Florida debtor. Harvey v. Thompson, 2 Ga. App. 569, 60 S. E. 11. While such a law is undoubtedly constitutional (Harris v. Balk, supra), it is, when applied to nonresident laborers, a harsh exercise of legislative power, and, if left unrestricted, would have the effect of making the courts of this state a forum for the collection of debts owing by nonresidents to nonresidents where the lex loci did not afford a remedy. Rood on Garnishment, § 104 et seq. Such were the conditions when the amendment of 1906 was passed. Can it be doubted that the purpose of the Legislature in enacting this amendment was to prevent and remove the particular evil, or possibility of evil, above pointed out in the original statute?

It was no doubt felt by the Legislature that the law of 1904 was too broad and too harsh as to nonresident laborers, and that it would be more in accord with comity and justice to protect the wages of such laborers from the grasping hand of creditors. It has been said that the object of exemption laws is to guard against the "readiness of men to make contracts which may deprive them and their families of articles indispensable to their comfort, * * * and to promote the comfort of their families and protect them against the improvidence of their head." Per Denio, J., in Kneettle v. Newcomb, 22 N. Y. 249, 253, 78 Am. Dec. 186, cited in Traders' Investment Co. v. Macon Ry. & Light Co., 3 Ga. App. 125, 59 S. E. 454, 457. The act of 1904 failed to recognize that the families of laborers in our sister states need protection, and failed to provide for them any exemption whatsoever. The amendment of 1906 is purely remedial,...

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7 cases
  • Lears v. Seaboard Air Line Ry.
    • United States
    • Georgia Court of Appeals
    • February 14, 1908
  • Cent. Of Ga. Ry. Co v. Jones
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    • Georgia Court of Appeals
    • March 2, 1922
    ...Pritchard v. Savannah R. Co., 87 Ga. 294, 13 S. E. 493, 14 L. R. A. 721; Willis v. Fincher, 68 Ga. 444, 445(1); Lears v. Seaboard Air-Line Ry., 3 Ga. App. 614, 618, 60 S. E. 343; 36 Cyc. ...
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    • United States
    • Georgia Court of Appeals
    • March 2, 1922
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