McLean v. G. T. Duke Co.

• Decision Date: 18 February 1957
• Docket Number: No. 1,No. 36462,36462,1
• Citation: 95 Ga.App. 135,97 S.E.2d 537
• Parties: Rex McLEAN et al. v. G. T. DUKE COMPANY, Inc
• Court: Georgia Court of Appeals

Page 537

97 S.E.2d 537

95 Ga.App. 135

Rex McLEAN et al. v. G. T. DUKE COMPANY, Inc.

No. 36462.

Court of Appeals of Georgia, Division No. 1.

Feb. 18, 1957.

Syllabus by the Court

1. The Civil Court of Fulton County has jurisdiction over garnishment cases where the judgment on which the garnishment is based is from a superior court of this State other than the Superior Court of Fulton County.

2. A garnishee may attack the judgment against his creditor and object to its use as evidence before a judgment is entered against him, but after the judgment has been rendered it is conclusively presumed to be a valid judgment.

3. The fact that the debtor applied to be declared, and was declared, a bankrupt within four months after the plaintiff obtained its lien did not automatically void such lien.

4. In the present case where the Bulk Sales Act has not been complied with it is no defense that the purchase price of the property was paid by the purchaser directly to another of the defendant's creditors.

On January 12, 1956, G. T. Duke Company, Inc., obtained a writ of attachment in the Superior Court of Cobb County against certain property which had, according to the petition for writ of attachment, been sold by the defendant, H. N. Casey to Rex McLean and Charlie McLean, trading as McLean Brothers, in violation of the Bulk Sales Act, and on February 28, 1956, McLean Brothers filed an answer in the Civil Court of Fulton County to a summons of garnishment in which they denied that they possessed any money or property or effects of the defendant Casey. This answer was traversed by the plaintiff and the issue later tried was thus made. On June 11, 1956, the garnishees filed a 'Demurrer, motion to dismiss and plea to the jurisdiction' which was later overruled and in which it was contended that the trial court did not possess jurisdiction to try the issue made since the plaintiff was seeking to have a sale set aside. On July 19, 1956, the garnishees filed an amendment to their answer in which it was alleged that the defendant had on March 29, 1956, filed a petition in the United States District Court, Northern District of Georgia, Atlanta Division, in which he sought to be declared a bankrupt and that the debt owed by him to the plaintiff was listed in such petition and therefore the right to collect the assets of the defendant was vested exclusively in the trustee in bankruptcy. On the trial of the case the trial court hearing the case without the intervention of a jury found for the traverse to the garnishee's answer and entered judgment for the plaintiff and against the garnishees in the amount of the attachment issued from the Superior Court of Cobb County. The garnishees filed a motion for new trial on the usual general grounds which they later amended so as to add two special grounds. The trial court overruled the garnishee's motion for new trial as amended and it is to this judgment adverse to them that they except as well as to the antecedent ruling adverse to them.

C. Baxter Jones, Jr., William R. Patterson, Atlanta, for plaintiffs in error.

T. B. Higdon, Atlanta, for defendant in error.

NECHOLS, Judge.

1. The garnishee's first special ground of their motion for new trial is but a restatement of their motion to dismiss and plea to the jurisdiction and will therefore not be considered separately.

The decision of this court of Charles S. Martin Distributing Co. v. Southern Furnace Co., 88 Ga.App. 339(2), 76 S.E.2d 662, controls this assignment of error and requires an affirmance of the ruling thereon by the trial court. The effect of the ruling in that case was that the Civil Court of Fulton County has jurisdiction over garnishment cases where the judgment on which the garnishment proceedings is based is from a superior court of this State other than the Superior Court of Fulton County. The Superior Court of Cobb County issued a writ of attachment on the property of the defendant purchased by the garnishees from the defendant in violation of the Bulk Sales Act. Code, § 28-203 et seq.

2. The plaintiffs in error, in their brief, attempt to raise the question of the validity of the judgment obtained in the attachment proceedings in Cobb Superior Court. This question was not, according to the record before this court, raised in the court below, nor was any objection made when this judgment was introduced in evidence on the trial of the garnishment proceedings. 'The prior judgment against the defendant in the original suit is only necessary evidence which must be adduced in order to warrant a judgment against a garnishee, * * *. A garnishee may attack the judgment against his creditor and object to its use as evidence against...