Ownby v. Wager
| Decision Date | 06 February 1941 |
| Docket Number | 28691. |
| Citation | 13 S.E.2d 686,64 Ga.App. 433 |
| Parties | OWNBY v. WAGER. |
| Court | Georgia Court of Appeals |
W F. Moore, of Atlanta, for plaintiff in error.
No appearance for defendant in error.
Vester M. Ownby obtained a judgment against F. H. Bray for the principal sum of $50 on September 5, 1939. On November 30 1939, process of garnishment was instituted by Ownby, and summons of garnishment was served on H. D. Wager trading as Wager Motor Company, on December 1, 1939. Wager answered on January 29, 1940, to the effect that at the time of the service of the summons he had owed Bray nothing and that since the time of service and until the answer no funds due Bray had come into his hands. On February 23, 1940 the plaintiff in fi. fa., Ownby, traversed the answer of the garnishee, Wager, as being untrue. On April 17, 1940, Wager offered an amendment to his answer and set up that since the service of the garnishment on him Bray had worked for him from December 1, 1939, to December 30, 1939, at a weekly wage of $15, and that he had come into the possession of $60 belonging to Bray, and that Bray was indebted to Wager in the sum of $52 which Wager had deducted from the salary of Bray, leaving a balance of $8 from the $60, which balance the garnishee said was exempt from garnishment. This amendment was allowed by the trial judge over the objection of Ownby, who contended that it was inconsistent with the original answer and illegal. The evidence for the garnishee sustained the allegations of his amendment to his original answer. Therewere several other answers filed in response to other summons of garnishment served
subsequently to January 31, 1940. These last-mentioned answers are of no concern here, for the undisputed evidence showed that Bray ceased working for the garnishee on December 31, 1939, and the answers, other than the first above mentioned, were to the effect that the garnishee owed Bray nothing. The judge found against the traverse and in favor of the garnishee. The case was appealed to the appellate division of the civil court of Fulton County. This court affirmed the decision of the trial judge and Ownby excepted.
There are two questions presented which will determine the issues: First, whether or not a garnishee, after having answered that he has no funds due the defendant in fi. fa., can subsequently amend his answer over objection duly made and show that at the time the summons was served upon him he was indebted to the defendant in fi. fa.; and, second, whether or not a garnishee can lawfully deduct from the daily, weekly, or monthly wages of an employee, earned after service of summons of garnishment, any portion of the balance above $1.25 per day plus 50 per cent. of the excess, and apply said balance, or any portion thereof, to the payment of a debt due the employer by the employee.
The first question has been ruled adversely to the plaintiff in error. "An answer to a summons of garnishment made at the proper term of court, is amendable." Simplex Machine Company v. Greenberg & Bond Company, 22 Ga.App. 68(1), 95 S.E. 530; Burrus v. Moore, 63 Ga. 405; Plant v. Mutual Life Ins. Co., 92 Ga. 636, 19 S.E. 719; Dannenberg Co. v. AdlerMay Co., 137 Ga. 111, 72 S.E. 906.
In answer to the second question, the employer can not under the law deduct from the daily, weekly or monthly wages of an employee, earned after service of summons of garnishment, any portion of said balance above $1.25 per day plus 50 per cent. of the excess, and apply said balance or any portion thereof to the payment of a debt due by the employee to the employer or any other such creditor. There still seems to exist some confusion in the minds of some regarding this principle. Code, § 46-203, provides: This section was intended to make plain that upon the service of a summons of garnishment a lien was created in favor of the plaintiff on all the indebtedness of the garnishee to the defendant in fi. fa. over and above the exemptions at the time of the service of the summons, and upon all future indebtedness accruing up to the date of the answer,...
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