Taylor v. Jarrell

• Citation: 104 Ga. 169,30 S.E. 675
• Parties: TAYLOR. v. JARRELL.
• Decision Date: 12 April 1898
• Court: Georgia Supreme Court

30 S.E. 675

104 Ga. 169

TAYLOR.

v.JARRELL.

Supreme Court of Georgia.

April 12, 1898.

Action on Note—Defenses—Garnishment— Exemptions.

T. holds a note against J. A judgment creditor of T. sues out garnishment against J., and obtains judgment against him for the amount of his debt to T., with stay of execution until the maturity of the note. T. afterwards makes application to the ordinary for an exemption of this note, of which application the garnishee and the judgment creditor of T. have due notice. After such notice, the garnishee voluntarily pays to the justice of the peace, in whose court the judgment was rendered against him, the amount of such judgment, with an understanding with the judgment creditor that the garnishee would be protected and saved from loss by paying the money into court. Subsequently the note was duly set apart to T., upon his application, as an exemption of personalty. Held, that in a suit by T. against the garnishee upon the note, after the same had become thus exempted, the above facts constituted no defense thereto, and T. was entitled to recover.

(Syllabus by the Court.)

Error from superior court, Green county; John C. Hart, Judge.

Action by E. L. Taylor, trustee, against Felix Jarrell. Judgment for defendant, and plaintiff brings error. Reversed.

Jos. Davison, for plaintiff in error.

Saml. H. Sibley, for defendant in error.

LEWIS, J. The rights of a head of a family, under the homestead laws of this state, begin to accrue in the property sought to be exempted when he files his application to the ordinary for an exemption. Pending the application, his rights do not become vested to such an extent as to prevent a seizure of the property for his debts, but if there is a sale of the property before exemption, under judicial process, the purchaser at such sale, with notice of the application, buys subject to the exemption, should it be afterwards allowed. It follows, therefore, that, if any such sale of the property pending the application has taken place, the debtor has the same right to its possession and control after exemption that he would have had In the event no such sale had taken place. He can recover it of a purchaser at such sale. This court held, in the case of Harrell v. Harrell, 75 Ga. 697, as follows: "Where, pending an application for exemption, the property sought to be exempted is sold at a judicial sale, subject to the right of exemption, the purchaser at the sale takes the property subject to the same right of exemption; and, if afterwards It be allowed by the ordinary, the applicant may maintain trover against any one who may have converted personalty so sold. No demand is necessary where the defendant has sold the property, but such sale is itself a conversion." See, also, Hawks v. Hawks, 64 Ga. 242; Crine v. Johns, 96 Ga. 220, 22 S. E. 913.

The same rule will necessarily apply when an effort is made by a creditor to subject to his debt by garnishment a chose in action belonging to his debtor. A chose in action cannot be reached by the ordinary process of levy and sale under an execution. The remedy of the creditor is by garnishment, which is simply another method of enforcing his lien against this kind of property belonging to his debtor. But the creditor's judgment has no greater lien upon the debt garnished than his execution has upon the property levied on. A judgment against a garnishee, therefore, has the same effect upon the debt garnished that a levy of an execution would have upon property seized. Hence it follows that the debtor has the same right to apply for an exemption of a debt garnished after judgment against the garnishee that he would have to apply for a homestead in property after the same had been seized under execution. We think...