Parker-fain Grocery Co v. Orr

• Court: Georgia Court of Appeals
• Writing for the Court: HILL
• Citation: Parker-fain Grocery Co v. Orr, 57 S.E. 1074, 1 Ga.App. 628 (Ga. App. 1907)
• Decision Date: 25 April 1907
• Docket Number: (No. 125.)
• Parties: PARKER-FAIN GROCERY CO. v. ORR.

57 S.E. 1074

1 Ga.App. 628

PARKER-FAIN GROCERY CO.

v.ORR.

(No. 125.)

Court of Appeals of Georgia.

April 25, 1907.

Garnishment — Property Subject—Possession of Garnishee.

A., being unable to pay his debts, delivered ail of his stock of merchandise to B., who agreed to sell the same and divide the proceeds equally among A.'s creditors. After B. had sold the merchandise, and had mailed to A.'s creditors checks for their pro rata part of the money realized from the sale, he was served with summons of garnishment by one of A.'s creditors. It did not appear that when B. was served he could have recalled the checks. Held: (a) B. was under no legal duty to countermand the payment of the checks by the bank upon which they were drawn; it appearing that he had sent them to A.'s creditors in good faith. (b) In the absence of fraud or mistake, B. could not countermand the payment of the checks by the bank without incurring liability to the payees or the bona fide holders thereof. (c) B. was not liable as garnishee for any part of the debt represented by the checks, except the pro rata share of the debt due by A. to the garnishing creditor, and which B. had in his possession when served with the summons of garnishment.

[Ed. Note.—For cases in point, see Cent Dig. vol. 24, Garnishment, §§ 97-99.] (Syllabus by the Court.)

Error from City Court of Dublin; Burch, Judge.

Action by the Parker-Fain Grocery Company against L. L. Braswell, with garnishment of E. R. Orr. Judgment for garnishee, and plaintiff brings error. Reversed.

Ira S. Chappell and W. C. Davis, for plaintiff in error.

John S. Adams and Williams & Biackshear, for defendant in error.

HILL, C. J. The Parker-Fain Grocery

Company brought suit against L. L. Braswell, in the city court of Dublin on an account for $38, and bad summons of garnishment issued and served on E. R. Orr. The garnishee answered the summons by denying indebtedness, and the plaintiff filed a traverse to the answer. It was agreed that the judge, without the intervention of a jury, should try and determine the issue thus formed. On the trial, the following facts were shown: L. L. Braswell, being in failing circumstances and unable to meet his obligations, delivered to E. R. Orr all of his goods, with the verbal understanding and agreement that Orr should sell the same and divide the proceeds equally between his creditors. The Orr-Smith Grocery Company, of which Orr was a member, was one of Braswell's creditors, but snared equally with the other creditors in the proceeds arising from the sale of Braswell's stock. Orr received no consideration for his services, but undertook the trust solely for the purpose of realizing from the sale of the goods, in order that his firm, as well as the other creditors, could get as much as possible on their claims. Orr sold the stock of goods, prorated the proceeds equally between all of Braswell's creditors, including the plain-tiff, and mailed checks to each one of said creditors in payment of their pro rata share. He had mailed all the checks to the creditors on the morning of the day on which he was served with summons of garnishment in the afternoon. The money arising from the sale of Braswell's goods was in the bank to meet said checks. When he had been served with the summons of garnishment, Orr took no steps to prevent the payment of the checks, either by attempting to recall the same, or by notifying the bank not to pay them. A check for $9 and a few cents, payable to the plaintiff as its part of the proceeds arising from the sale of the stock of goods, was in Orr's hands when the garnishment was served, and was still held by him, and the money to pay the same was in the bank. At the conclusion of this evidence the court found in favor of the garnishee on the ground that no judgment had been shown by the plaintiff against the defendant, and refused a motion made by the plaintiff to reopen the case for the purpose of allowing him to introduce such judgment. The plaintiff excepted to this refusal of the court as an abuse of its discretion, and also excepted to the judgment in favor of the garnishee, on the ground that the judgment was without evidence to support it.

This being a trial of an issue made by the traverse to the garnishee's answer as to the fact of the indebtedness, it was not necessary for ...