King v. Tyler

Court of Appeals of Georgia

King v. Tyler

250 S.E.2d 784, 148 Ga. App. 272, 1978 Ga. App. LEXIS 3071

CourtCourt of Appeals of Georgia

DecidedOctober 16, 1978

Docket56240

StatusPublished

Cited by5 cases

This text of 250 S.E.2d 784 (King v. Tyler) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

King v. Tyler, 250 S.E.2d 784, 148 Ga. App. 272, 1978 Ga. App. LEXIS 3071 (Ga. Ct. App. 1978).

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Opinions

Banke, Judge.

The appellant, Lettit R. King, enumerates as error the judgment of the trial court that $9,716.59 held by the appellee, J. C. Tyler, was not subject to garnishment.

The basis of the garnishment proceeding was an alimony judgment which the appellant had obtained against her former husband. The appellee (garnishee) was Mr. King’s attorney. Approximately 11 days before service of the garnishment summons on the appellee, King endorsed a check for $13,674.89 over to him for deposit into the appellee’s professional corporate account. Legal fees totaling $5,458.30 were paid to the appellee out of this fund before service of summons on him, and an additional $4,903.57 in legal fees was paid to him after service. Other debts of King were paid out of the balance of the fund. The appellant does not contest appellee’s receipt of $3,958.30 which represented payment of a legal fee authorized by Code § 9-613 (2). Held:

The appellee contends that King’s endorsement of the check over to him rendered the money no longer subject to garnishment for the purpose of satisfying a judgment against King. In his testimony he explained that this transfer was accomplished as part of an oral trust agreement between himself and King and that he was to use the fund to pay certain previously designated debts of King. He argues further that since this express agreement was entered into before the service of summons on him (see Code Ann. § 46-301), the payments to creditors made subsequent to service were [273]*273valid and not subject to garnishment.

Argued September 11, 1978 Decided October 16, 1978 Rehearing denied December 1, 1978 Charles H. Edwards, for appellant. John C. Tyler, pro se.

Code § 108-104 defines an express trust as one "created and manifested by agreement of the parties.” Code § 108-105 provides: "All express trusts shall be created or declared in writing.” It has long been established that the mandate of this latter statute is imperative (see, e.g. Printup v. Barrett, 46 Ga. 407, 412 (1872)), and appellee’s attorney-client relationship with King does not require a contrary ruling. See Knight v. Jackson, 156 Ga. 165 (3) (118 SE 661) (1923). In Knight the Supreme Court held invalid a client’s attempt to create an express trust by orally directing her attorney to hold, as trustee, certain proceeds of litigation in trust for her nephew. Likewise, the oral agreement between the appellee and King in this case does not qualify as a valid express trust.

It follows, therefore, that the appellee, in depositing King’s money into his professional corporate account for dispersal to King’s creditors, was acting more in the role of an agent, and not a trustee, and that under the ruling of Gittens v. Whelchel, 12 Ga. App. 141 (5) (76 SE 1051) (1913), the money was subject to garnishment. "Whether the money belonging to [the garnishment defendant] was held by the garnishee as guardian, or under the contract which he had made with her, certainly he had no right to this money as against a bona fide claim reduced to judgment in favor of [the garnishor].” Gittens v. Whelchel, supra, p. 144. See also Greenwood v. Boyd & Baxter Furn. Factory, 86 Ga. 582 (3) (13 SE 128) (1891). Accordingly, the judgment is reversed and remanded with direction that judgment be entered finding that the money undispersed ($8,216.59) at the time of service was subject to garnishment.

Judgment reversed and remanded with direction.

Deen, P. J., and Smith, J., concur.

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Banke, Judge.

The appellant, Lettit R. King, enumerates as error the judgment of the trial court that $9,716.59 held by the appellee, J. C. Tyler, was not subject to garnishment.

The basis of the garnishment proceeding was an alimony judgment which the appellant had obtained against her former husband. The appellee (garnishee) was Mr. King’s attorney. Approximately 11 days before service of the garnishment summons on the appellee, King endorsed a check for $13,674.89 over to him for deposit into the appellee’s professional corporate account. Legal fees totaling $5,458.30 were paid to the appellee out of this fund before service of summons on him, and an additional $4,903.57 in legal fees was paid to him after service. Other debts of King were paid out of the balance of the fund. The appellant does not contest appellee’s receipt of $3,958.30 which represented payment of a legal fee authorized by Code § 9-613 (2). Held:

The appellee contends that King’s endorsement of the check over to him rendered the money no longer subject to garnishment for the purpose of satisfying a judgment against King. In his testimony he explained that this transfer was accomplished as part of an oral trust agreement between himself and King and that he was to use the fund to pay certain previously designated debts of King. He argues further that since this express agreement was entered into before the service of summons on him (see Code Ann. § 46-301), the payments to creditors made subsequent to service were [273]*273valid and not subject to garnishment.

Argued September 11, 1978 Decided October 16, 1978 Rehearing denied December 1, 1978 Charles H. Edwards, for appellant. John C. Tyler, pro se.

Code § 108-104 defines an express trust as one "created and manifested by agreement of the parties.” Code § 108-105 provides: "All express trusts shall be created or declared in writing.” It has long been established that the mandate of this latter statute is imperative (see, e.g. Printup v. Barrett, 46 Ga. 407, 412 (1872)), and appellee’s attorney-client relationship with King does not require a contrary ruling. See Knight v. Jackson, 156 Ga. 165 (3) (118 SE 661) (1923). In Knight the Supreme Court held invalid a client’s attempt to create an express trust by orally directing her attorney to hold, as trustee, certain proceeds of litigation in trust for her nephew. Likewise, the oral agreement between the appellee and King in this case does not qualify as a valid express trust.

It follows, therefore, that the appellee, in depositing King’s money into his professional corporate account for dispersal to King’s creditors, was acting more in the role of an agent, and not a trustee, and that under the ruling of Gittens v. Whelchel, 12 Ga. App. 141 (5) (76 SE 1051) (1913), the money was subject to garnishment. "Whether the money belonging to [the garnishment defendant] was held by the garnishee as guardian, or under the contract which he had made with her, certainly he had no right to this money as against a bona fide claim reduced to judgment in favor of [the garnishor].” Gittens v. Whelchel, supra, p. 144. See also Greenwood v. Boyd & Baxter Furn. Factory, 86 Ga. 582 (3) (13 SE 128) (1891). Accordingly, the judgment is reversed and remanded with direction that judgment be entered finding that the money undispersed ($8,216.59) at the time of service was subject to garnishment.

Judgment reversed and remanded with direction.

Deen, P. J., and Smith, J., concur.

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250 S.E.2d 784, 148 Ga. App. 272, 1978 Ga. App. LEXIS 3071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-tyler-gactapp-1978.

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