F. T. Willis & Co. v. E. Parsons & Co.

13 Ga. 335

• Court: Supreme Court of Georgia
• Decided: June 15, 1853
• Docket: No. 50
• Status: Published

Opinion

By the Court.

Warner, J.

delivering the opinion.

[1.] That, as between attaching creditors, the garnishment first served shall be first satisfied, is undoubtedly a sound legal proposition; that is to say, whenever a summons of garnishment issues in any case in which the ordinary process of the law cannot be served on the defendant, as where he resides out of the State, or is actually removing without the limits thereof, or out of the County, or absconds, &c.

[2.] In all such cases, the attachment first served, which also includes the summons of garnishment, shall be first satisfied. Prince, 34. But it is to be observed, that by the 8th section of the Act of 1814, no lien shall bo created by the levying of an attachment, to the exclusion of any judgment obtained by any creditor, before judgment is obtained by the attaching creditor. Ibid.

[3.] Whenever an attachment is levied upon property, or a summons of garnishment issues to reach effects not the subject matter of levy, and a judgment is obtained against the defendant, in a suit instituted by the ordinary process, according to the course of the Common Law, and the latter obtains a judgment prior to the attaching creditor, the Common Law judgment will be first satisfied; or if the judgment of the attaching creditor, and the Common Law judgment be of equal date, then the same will be entitled to a pro rata distribution of the fund in Court. As between attaching creditors, the date of the levy fixes the lien. As between attaching creditors, and creditors who have obtained judgment by the ordinary process of the law, the date of the respective judgments determines the lien. McDougald vs. Barnard, 3 Kelly, 169. Litchton & Barker vs. McDougald et al. 5 Georgia R. 176.

In the case now under consideration, the respective creditors claiming the fund in Court, instituted their suits against the defendants, Rowland & Washburn, by the ordinary Common Law process, and obtained judgments at the same term of the Court.

Pending the suit, Parsons & Co., sued out a summons of garnishment according to the provisions of the Act of 1822, which was served upon Andrew Low & Co. The garnishees were indebted to the defendants the sum of $3950.83, which was brought into Court by virtue of the summons of garnishment sued out at the instance of Parsons & Co., their garnishment being first served. Intermediate the service of the garnishment and the date of the judgments of the respective creditors, Rowland & Washburn made an assignment of all their effects to Neely.

The argument is, that inasmuch as the garnishment of Parsons & Co. was first served, and brought the money into Court, and all the effects of the defendants having been assigned before the rendition, of the judgments, the latter created no lien upon the fund raised by the garnishment process; but that Parsons & Co. being prior in point of time in serving” their garnishment, they obtained a priority of lien upon the fund, as in cases of attachment.

We do not understand that garnishments issued according to the provisions of the Act of 1822, stand upon the same footing in regard to liens created thereby, as garnishments issued m attachment cases. It is true, that Act intended to afford- a new remedy in certain cases therein specified, by authorizing summons of garnishment to issue, “ as in cases of .attachment,” but not to create a lien as in eases of attachment. The 5th section of the Act regulates the manner in which the money paid into Court under the proceedings authorized by it, shall be paid over.

By that section, it is declared, “ When any money shall be paid into Court, or shall be raised by the Sheriff, or his deputy, or by a Constable, under this Act, the same shall be paid over to judgments or executions against the defendant, as in other cases, according to the priority established by law.” Prince, 37.

The fund in controversy, was raised and paid into Court, under a proceeding authorized by this Act, and the judgments claiming it are against the defendants, obtained on suits instituted by the ordinary process, and of equal date, and by law, as we have clearly shewn, are entitled to a pro rata distribution thereof. The object of the Act of 1822, was to enable parties plaintiffs pending suits instituted by the ordinary process, to have a simple and expeditious remedy against their debtors, by summons of garnishment, to issue, as in cases of attachment, to reach their effects in the hands of third persons, and to impound the same until judgments could be obtained ; but that Act never contemplated, in our judgment, that the effects of the debtor, when so impounded, should be exclusively appropriated to the payment of the debt of the plaintiff suing out the garnishment, to the exclusion of the other creditors, whose suits were pending at the same time, and who might obtain judgments at the same term of the Court. The 5th section of the Act forbids that construction. The fund in the hands of the Court was the property of the defendants ; the judgments of Willis & Co. and others, were against the defendants, and being of equal date with that of Parsons & Co. are of equal dignity, as established by law. It may be true, that but for the summons of garnishment sued out by Parsons & Co. the other judgment creditors would not have got any thing, because of the assignment to Neely ; nor would Parsons & Co. have got anything. They availed themselves of the remedy given them by the Act of 1822, and must abide the provisions of that Act, as to the distribution of the fund with the other judgment creditors of equal dignity with themselves.

Let the judgment of the Court below be reversed.