Mims v. Phillip West

• Decision Date: 30 June 1868
• Citation: 38 Ga. 18
• Parties: WADE H. MIMS, et al., plaintiffs in error. v. PHILLIP WEST, defendant in error.
• Court: Georgia Supreme Court

38 Ga. 18

WADE H. MIMS, et al., plaintiffs in error. v. PHILLIP WEST, defendant in error.

Supreme Court of the State of Georgia

(Milledgeville, June Term, 1868.)

Equity. Garnishment. By Judge Vason. Chambers. Lee county. November, 1867.

On the 24th of June, 1867, West brought complaint in Lee Superior Court, on an open account, against Wade H. Mims for $2,519 95, and sued out process of garnishment, which was served on Henry Green, James M. Sullivan et al. At the time of the service of such summons, all of the garnishees were indebted in some way to Mims. After the service of the garnishments, Mims sold Sullivan's note to Henry T. Mash. Sullivan conveyed his property to Gilbert, in trust, to pay his debts, and died without answering said garnishment, and now Mash is trying to get Gilbert to pay the Sullivan note. Gilbert took said trust after he knew Sullivan had been garnisheed. Mims also transferred the notes on Montgomery and Green after they were garnisheed, and they paid them to the purchaser. And since the garnishment was served, Mims, for a small consideration, sold Jackson's note to Robert T. Bird, who is trying to collect the same. Under this state of facts, West contended that the service of the summons of garnishment fixed the status of the said parties, and of the said claims at the dates of service, and any change of such status since, was illegal and void as against him, and by his bill he invoked the judgment of the Chancellor to that effect; and because Montgomery and Green were insolvent, and were disposing oftheir property to avoid paying said notes, he prayed that the sheriff of Lee *county should take possession of their property, and hold it till they gave security for its forth-coming to answer their decree. He further prayed that Mash and Gilbert should appear and answer, and in fine, that complainant should have all the rights that he would have had, had the garnishees all answered his garnishments, and had there been no transfers of property, or of choses in action, and that, meanwhile, all further changes be enjoined. There was no allegation that the purchasers had any notice of the garnishments before they bought the notes.

Judge Vason sanctioned the bill, and ordered the sheriff to take possession of the property of Montgomery and Green, which they had mortgaged to Mims, and hold it till further order, unless they gave bond in the sum of $1,000 00, for the forthcoming of the same, to pay any judgment which West might get against them by reason of the premises.

None of the defendants answered the bill except Bird. He said he bought the note before due, in due course of trade, for a fair and full consideration, without notice of the garnishment— and further, that he was no party to the order requiring said cotton turned over to an officer of the Court to abide its judgment, (this order does not appear in the record,) and knew nothing of it till after it was passed. His answer was supported by an affidavit of one Ansley, who saw him have said note before it was due.

Bird moved to dissolve the injunction because there was no equity in the bill, and so far as he was concerned, because he had sworn off the equity, if there was any. The motion was refused, and this is assigned as error.

Hawkins, Kimbrough, Ansley, (represented by McCay,) for plaintiffs in error.

F. H. West, for defendant in error.

*Walker, J.

1. When a person is served with a summons of garnishment, he is required to answer what he was indebted to the defendant at the time of the service of said garnishment, Rev. Code, sec. 3226; and if unable to admit or deny his indebtedness, he should plainly and distinctly set forth the facts, so as to enable the court to give judgment thereon. Ib., sec. 3492. Judgment should not be entered up against the garnishee, unless it appear affirmatively, that, at the time of the garnishment, the defendant had a cause of action against him for the recovery of a legal debt, due or to become due by efflux of time; and no judgment should be entered against the garnishee unless it would be available as a defence against any action afterwards brought against him, on the debt in respect of which he is charged. Drake on Att, sections 461, 583. The garnishee cannot be compelled to pay the debt twice. Brannon v. Noble, 8 Ga., 550.

Under the old law, it would seem that a debt not due, was not subject to garnishment. In Dalton v. Solly, Croke, Eliz., 184, "It was held per Curiam, that a foreign attachment can not be of a debt before it be due; and therefore, whereas one was indebted in a sum of money to be paid at Michaelmas, and it was attached before Michaelmas, but the judgment of the attachment was not till after Michaelmas, it was clearly held to be void, because it was not due when attached." This was decided in 1590. This rule seems to have been changed in Georgia; see Glanton v. Griggs, 5 Ga. R., 424; King & Ells v. Carhart Brothers & Co., 18 Ga. R., 650; and probably in most of the States of this Union; see 6 Maine R., 263; 4 Mass. R., 235; 17 Pa. R„ 440; 1 Har. & J. R., 536, (Md.); 3 Murphy\'s R., 256, (N. C.); 1 Ala. R., 396; 17 Arkansas R., 492. Mr. Drake, in his work on Attachments, sec. 587, states correctly the principles which now govern in relation to negotiable securities not due. He says: "As a general rule, the maker of a negotiable note should not be charged as garnishee of the payee under an attachment served before the maturity of the note, unless it *be affirmatively shown that before the rendition of the judgment, the note had become due, and was then still the property of the payee." Again, in sec. 585, he says: "But though the garnishee should answer that the defendant, at the time of the garnishment, was the owner of the garnishee\'s note not then due, no judgment should be rendered against him, because his obligation is not to pay to any particular person, but to the holder at maturity, whosoever it may be. Can the garnishee, or the defendant, or the court say...