Odom v. Attaway
| Decision Date | 17 December 1931 |
| Docket Number | No. 8472.,8472. |
| Citation | 162 S.E. 279,173 Ga. 883 |
| Parties | ODOM et al. v. ATTAWAY. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The announcement in open court by petitioner that he did not seek "any injunction against the officers of court" is not such admission in judicio adverse to the interests of plaintiff as to make the rights of plaintiff, under her petition, entire and not severable. She could elect to pay the amounts due to officers of court and prosecute the injunction as against other parties.
2. There is an exception to the judgment on the ground that it is not authorized by the verdict. This exception is without merit. A correct construction of the verdict will be found to authorize all that is decreed by the court.
3. "One judgment may be set off against another, on motion, whether in the hands of an original party or an assignee." "The right of setting off one judgment against another is conferred by express statute, and may be exercised although the practical result may be an extinguishment of such judgment in whole or in part, and thereby the attorney may lose the power of enforcing it for his fee."
4. The questions of law dealt with above are controlling, and for that reason the court did not err in directing a verdict.
Error from Superior Court, Pierce County; M. D. Dickerson, Judge.
Suit by M. A. I. Attaway against M. L. Odom and another, in which interventions were filed. Judgment was entered granting the plaintiff relief, and defendant and interveners bring error.
Affirmed.
See also 172 Ga. 311, 157 S. E. 871.
Oliver & Oliver, of Savannah, and L. E. Heath, of Douglas, for plaintiffs in error.
T. M. Linder, of Atlanta, and S. P. New, of Dublin, for defendant in error.
On December 8, 1927, M. L. Odom, recovered, in an action for libel in Jeff Davis superior court, a judgment against Mrs. M. A. I. Attaway and her husband, W. B. Attaway, the action having been based upon an effort of the Attaways to have Odom adjudicated a bankrupt. On March 6, 1929, in the same court Mrs. Attaway recovered against Odom a judgment in an action ex contractu. Odom is a resident of Pierce county. About December 9, 1929, the sheriff of Jeff Davis county levied the execution issued on the judgment of Odom against Mrs. Attaway upon described land as belonging to her. Both M. L. Odom and W. B. Attaway are insolvent. Odom's judgment was for $2,112.35. Attaway's judgment was for approximately $2,145.80. The case of Attaway against Odom was carried on writ of error, but without supersedeas, to the Court of Appeals, and was pending at the time of the filing of this suit in Pierce superior court, December 20, 1929. The judgment was affirmed in the Court of Appeals, January 29, 1930. Odom v. Attaway, 41 Ga. App. 51, 152 S. E. 148. After alleg-ing what is set out above, the petition brought by Mrs. Attaway against Odom and the sheriff of Jeff Davis county prayed: (1) That proceedings under the levy of the execution in favor of Odom be stayed by injunction; (2) that the judgments and executions be set off the one against the other; and (3) for general relief. Interventions were filed by Oliver & Oliver and L. E. Heath, attorneys, Oliver Investment Company, a corporation, Mrs. Wilmer S. Curling Meade, administratrix of the estate of H. B. Curling, deceased, and by M. E. Wood, the stenographer of the Brunswick circuit The interventions of the attorneys set up alleged prior liens upon the judgment of Odom against Mrs. Attaway, for legal services in the litigation which resulted in that judgment. The interventions of Oliver Investment Company and Mrs. Meade set up assignments of the judgment, made prior to the date of the judgment of Mrs. Attaway against Odom, to secure certain debts. That of Wood set up a judgment for services in reporting the evidence in the case of Odom against Mrs. Attaway.
On the trial of the case the court directed a verdict for the plaintiff; "that the smaller judgment and execution be set off against the larger one, not to affect the clerk, sheriff, and stenographer for their court costs; and for a permanent injunction for the plaintiff." Decree was rendered permanently enjoining the levy of the execution in favor of Odom, upon payment toy Mrs. Attaway of the costs of court which had accrued in Jeff Davis superior court, and providing that "upon failure to pay said sums [the court costs] the fi. fa. proceed for said sums only." Odom and the interveners excepted as to the direction of the verdict and to the decree. No motion for new trial was filed. Odom and the interveners mentioned are designated in the writ of error as plaintiffs. Mrs. Attaway is named as defendant. The bill of exceptions contains a concluding statement in the following language: "Defendant and intervenors further contend that all the facts as shown above and as disclosed by the pleadings and evidence in the case were questions of fact to be determined by the jury, as to whether the plaintiff was guilty of such fraud as would deny her relief in a court of equity, and the same should have been submitted to the jury under appropriate instructions by the court for determination by the jury." Defendant moved to dismiss the writ of error because: (1) The sheriff of Jeff Davis county was not made a party; (2) the assignments of error on the direction of the verdict are insufficient to test the issues of fact, no motion for new trial having been made; (3) the assignments of error are insufficient to test the pleadings of plaintiff, in the absence of complaint as to a ruling on demurrer; (4) the assignments are vague and indefinite; and (5) they present an exhaustive brief of the law, which is not allowable.
At the time an amendment to the intervention in favor of Wood was offered, counsel for plaintiff stated: It is contended that, because the verdict and decree were invoked by counsel for petitioner, the statement of counsel as above quoted was an admission in judicio that petitioner was not entitled to set off her judgment so as to defeat the costs and fees of officers of court; that this was a ratification of the judgment in favor of Odom, with the costs of the clerk and sheriff incorporated therein, estopped the petitioner from setting off her judgment against that of Odom so as to affect the interests of the interveners named; that her right, if any, to set off her judgment against that of Odom was entire, and not severable or divisible; that the decree does not follow the verdict, because the decree enjoins further proceedings on defendant's fi. fa., and at the same time provides that said fi. fa. shall, in the event of the failure to pay the costs, proceed for such sums only; that plaintiff is shown to be insolvent, and the decree does not do equity by requiring plaintiff to pay the difference between the judgments, but leaves it optional with her, and in that event provides that said fi. fa. shall proceed for said sums only, against an insolvent person; that the decree does not affirmatively require the payment of stenographer's fees, but only the payment of court costs, the stenographer's fees not being listed in the fi. fa., but in a separate judgment.
1. On the trial of the injunction suit petitioner announced in open court that in undertaking to set off the execution of Attaway against the execution of Odom et al., and in seeking to enjoin the threatened levy under the latter execution, she did not seek "any injunction against the officers of court" It is insisted that this is an "admission in judicio, which was adverse to the interests of plaintiff, and in favor of the clerk, sheriff, and stenographer"; that the right of such set-off "is entire, and not severable"; and that by such announcement petitioner waived any right to set off as against any of the judgment. The legal rights of the officers of court for their fees are not so connected with the other judgments as to make the rights of the plaintiff entire in the respect contended. Petitioner was legally authorized to waive anyprayer for injunction as against the officers of court; she could elect to pay the amounts due them, and prosecute the injunction as against enforcement of other portions of the execution. Compare Love v. National Liberty Ins. Co., 157 Ga. 259 (3, 4), 121 S. E. 648.
2. The second headnote does not require elaboration.
3. The sections of the Code which have reference to setting off one judgment against another and the assignment of judgments are as follows: Section 4342: Section 5670: "One judgment may be set off against another, on motion, whether in the hands of an original party or an assignee." Section 5969: "Any plaintiff or transferee may bona fide, and for a valuable consideration, transfer any judgment or execution to a third person, and in all cases the transferee of any judgment or execution shall have the same rights, and be liable to the same equities, and subject to the same defenses as the original plaintiff in judgment was." It will be observed that there is a conflict, where assignees of judgments are concerned, in sections 4342 and 5670. When we turn to the text-writers on the subject, we find that the decisions in other jurisdictions have not been entirely in accord. This, of course, may be explained by the varying statutes under consideration. In 2 Freeman on Judgments (5th Ed.) 2379,...
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