Levy v. Himmel & Son

88 S.E. 959, 145 Ga. 245, 1916 Ga. LEXIS 263

• Court: Supreme Court of Georgia
• Decided: May 15, 1916
• Status: Published

Opinion

Hill, J.

The plaintiff in this equitable action can have no remedy with respect to the debts alleged to be due by the resident defendants, without getting a judgment against the defendants to whom they owe the debts, and who are non-residents. A judgment fixing the debt due the plaintiff by the non-resident defendants is essential to his getting any remedy against the resident debtors, which is' merely collateral to that sought against the nonresidents. As against the non-residents he can not get any personal judgment, and the present action is not one in rem. Moreover, the situs of this debt is in Baltimore, it appearing that the resident debtors owe the debt to a non-resident creditor; and according to the allegations of the petition itself these debts are payable in Baltimore. This court ruled in two or more cases that even as against a proceeding in attachment, which was in rem, or at least quasi in rem, the situs of the debt due by a resident to a non-resident was at the place of the residence of the creditor. To meet these decisions an act of the legislature was passed, which provided that where an attachment was taken against a non-resident, and was levied by service of garnishment upon a resident who owed the defendant in attachment, in such a proceeding the situs of the debt should be considered in Georgia; but the act is limited to that one proceeding, which is only in rem, or quasi in rem, and has no application to the ease now before us. Therefore the judge correctly refused an injunction, for the reasons given by him.

Judgment affirmed.

All the Justices concur.