Southern Ry. Co v. Fulford

• Decision Date: 24 March 1906
• Citation: 54 S.E. 68,125 Ga. 103
• Court: Georgia Supreme Court
• Parties: SOUTHERN RY. CO. v. FULFORD.

54 S.E. 68

125 Ga. 103

SOUTHERN RY. CO.

v.FULFORD.

Supreme Court of Georgia.

March 24, 1906.

Garnishment — Exemptions — Failure or Garnishee to Assert.

One who owes wages which are exempt from garnishment, upon being garnished, should set up the fact of the exemption in his answer; and if he fails to do so, and permits judgment to be rendered against himself, and then pays the money due for wages into court, he does so at his peril and will be liable in a suit by the laborer for the amount of the latter's wages.

[Ed. Note.—For cases in point, see vol. 24, Cent. Dig. Garnishment, § 260.]

(Syllabus by the Court.)

Error from City Court of Macon; Robt Hodges, Judge.

Action by J. T. Fulford against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

N. E. & W. A. Harris, for plaintiff in error.

R. D. Feagin, for defendant in error.

BECK, J. Fulford was sued in a justice's court upon an account, and summons of garnishment was issued thereon against his employer, the Southern Railway Company. The garnishee answered that it was indebted to him in the sum of $49.30. Fulford was a party to the suit and was properly served therein, yet he did not contest the action, and judgment was rendered against him for $50 and costs. Judgment was also, subsequently, rendered against the garnishee subjecting the amount that it had answered was due him. A fi. fa. was issued against the railway company, and it paid the money into court. Fulford did not attempt to appeal either the judgment against him or the one against his employer, and he now brings this action against the railway company for the amount It paid into court, alleging that it was earned by him as a day laborer. The defendant, that is, the railway company, in its plea relied upon the above stated facts and averred that although Fulford was a party to the proceedings against him in the magistrate's court, he "in no way insisted upon any right to said moneys or made any claim that the same were exempt in any way." The court sustained a general demurrer to the defendant's answer, and entered a judgment of default upon the docket; to which ruling and judgment the railway company excepted.

The only question for our decision in this case is whether or not the court erred in sustaining the demurrer to the defendant's plea. There are certain other assignments of error in the bill of exceptions, but they were not insisted upon in the argument or brief of counsel for plaintiff in error. The question which is here now for decision seems to have been settled by the adjudications of this court, and of other courts in harmony with it. In the case of Watkins v. Cason, 46 Ga. 444, the facts were, that Cason was the holder of the notes of Watkins, which were not due, secured by a mortgage. Before the notes became due a judgment creditor of Cason issued a garnishment against Watkins and obtained a judgment against the garnishee for the amount of Cason's debt to him (the creditor), which was less than the amount of the notes. After judgment against the garnishee, but before the notes fell due, they were set apart to Cason as personalty under the homestead laws. On the maturity of the notes the judgment creditor issued an execution against the garnishee (which was levied upon his property), who voluntarily paid the amount to the attorney of the judgment creditor. Before the maturity of the notes the garnishee had written notice that they had been set apart to the payee as personalty under the homestead laws. And it was held by the court that Cason "was entitled to foreclose the mortgage for the full amount of the notes. If the money...