Lester v. Southern Security Co.

147 S.E. 529, 168 Ga. 307, 1929 Ga. LEXIS 126

• Court: Supreme Court of Georgia
• Decided: March 14, 1929
• Docket: No. 6914
• Status: Published

Opinion

Hines, J.

1. A creditor having a debt secured by title to property, where his debtor is adjudged a voluntary bankrupt, can, if he does not prove his debt in the bankruptcy court, institute an action in trover for the recovery of such property, and is entitled to obtain a money judgment against his debtor for the value of the property sued for, as against the plea of discharge in bankruptcy. Citizens Bank v. Mullis, 161 Ga. 371 (131 S. E. 44).

2. Any defense to the bail-trover proceeding, such as lack of demand by the creditor upon the debtor for the property to which he holds title and for which he sues, should be set up by the debtor in the trover action before judgment; and after judgment he is precluded from asserting sueli defense against the judgment in the trover proceeding. Civil Code (1910), § 4336; Watkins v. Lawton, 69 Ga. 671.

3. The fact that the creditor called up his trover action without notice to the debtor does not render the judgment in the trover suit void, it not being alleged that the debtor was not served with a copy of the trover proceeding, and no other fact being alleged which rendered it improper for the creditor to call up the trover proceeding.

4. The trial judge did not err in sustaining the demurrer to the petition of the debtor seeking to recover from the creditor money collected under the garnishment proceeding based upon the money judgment obtained in the trover, suit, and to enjoin the creditor from further proceeding to enforce his judgment.

No. 6914. March 14, 1929. Scott & Hornbuckle, for plaintiff. Ezra E. Phillips, for defendant.

Judgment affirmed.

All the Justices concur.