W. T. Harvey Lumber Co. v. J. M. Wells Lumber Co.

Decision Date28 September 1961
Docket NumberNo. 2,No. 39086,39086,2
Citation104 Ga.App. 498,122 S.E.2d 143
PartiesW. T. HARVEY LUMBER COMPANY v. J. M. WELLS LUMBER COMPANY, Inc
CourtGeorgia Court of Appeals

John G. Cozart, Columbus, for plaintiff in error.

Copland & Copland, Arthur F. Copland, Thomas E. Sikes, Columbus, for defendant in error.

Syllabus Opinion by the Court.

TOWNSEND, Presiding Judge.

1. On the trial of a traverse to the answer of not indebted in a garnishment, the general rule is that if the garnishee is not indebted to the defendant in fi. fa. in such manner that the latter could sue and obtain a judgment against it, then the garnishing plaintiff, who is in no better position than the defendant as to the garnishee, is not entitled to recover. Adair-Levert, Inc. v. Atlanta Envelope Co., 70 Ga.App. 685, 29 S.E.2d 323. An exception may exist where for some reason personal to himself the debtor is estopped from recovering what would otherwise be a valid obligation of the garnishee. Thus, where the debtor has placed his property in the hands of another for the purpose of defrauding creditors, although he might not himself be entitled to sue and recover it back, the judgment creditor may pursue the asset by garnishment, and has every right to recover it which the debtor himself has plus the additional advantage that he may set up the fraud of the debtor although the debtor himself might not do so. Watkins v. Pope, 38 Ga. 514, 515(2).

2. The prior admissions of a party to an action may be offered in evidence although not against interest when made, and, if believed by the jury, may be considered as substantive evidence of the fact sought to be proved. State Farm Mutual Automobile Insurance Co. v. Kendall, Ga.App., 122 S.E.2d 139. An attorney is such an agent of his client that his declarations made during the course of his employment may be offered against his principal. Glover v. Summerour, 165 Ga. 513(5), 141 S.E. 211.

3. 'On the traverse of the answer of the garnishees to the summons of garnishment, the issue was, whether the garnishees had assets of the defendant in their hands at the time of service, or between that time and the date of their answer. (a) And where there was some evidence, based on testimony in regard to admissions of one of the garnishees, tending to support the theory of the plaintiff that the garnishee did have money in his hands belonging to the defendant, after he was served with summons of garnishment, it was error to direct a verdict in favor of the garnishees.' Farrow v. Whitaker, 58 Ga.App. 454(3), 198 S.E. 821.

4. The evidence in this case was that the plaintiff W. T. Harvey Lumber...

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13 cases
  • In re EI du Pont de Nemours and Co.
    • United States
    • U.S. District Court — Middle District of Georgia
    • August 21, 1995
    ...and, unless withdrawn or stricken, may work an estoppel to deny them on the party making them); W.T. Harvey Lumber Co. v. J.M. Wells Lumber Co., Inc., 104 Ga.App. 498, 122 S.E.2d 143 (1961) (attorney is such an agent of client that his declarations made during the course of his employment m......
  • Thompson v. State, No. S03G0176.
    • United States
    • Georgia Supreme Court
    • September 15, 2003
    ...made during the course of his employment may be offered against his principal. [Cit.]" W.T. Harvey Lumber Co. v. J.M. Wells Lumber Co., 104 Ga.App. 498-499(2), 122 S.E.2d 143 (1961). Compare Farmer v. State, 100 Ga. 41, 45(3), 28 S.E. 26 (1896) (where accused was party to a prior civil acti......
  • Lane v. Tift County Hosp. Authority
    • United States
    • Georgia Court of Appeals
    • September 17, 1997
    ...the probativeness, accuracy, and authenticity of such discharge summary as evidence. See generally W. T. Harvey Lumber Co. v. J.M. Wells Lumber Co., 104 Ga.App. 498, 122 S.E.2d 143 (1961); NAACP v. Pye, 96 Ga.App. 685, 101 S.E.2d 609 (1957); Everitt v. Harris, 67 Ga.App. 64, 19 S.E.2d 545 (......
  • Early v. Ramey
    • United States
    • Georgia Court of Appeals
    • May 1, 1969
    ...is not a party opponent; the admission against interest of a party does have probative value. W. T. Harvey Lumber Co. v. J. M. Wells Lumber Co., Inc., 104 Ga.App. 468(2), 122 S.E.2d 143. But here the motion for summary judgment concerns only Early, the employer, and 'the declarations of the......
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