Opinion
39118.
DECIDED NOVEMBER 3, 1961.
Garnishment, etc. Candler Superior Court. Before Judge Humphrey.
Otis L. Hathcock, for plaintiff in error.
Lanier Lanier, Dan L. Lanier, contra.
When the evidence demands a finding that the garnishee was not at any time, from service of the summons of garnishment to the filing of its answer, indebted to the defendant, it is not error to direct a verdict for the garnishee.
DECIDED NOVEMBER 3, 1961.
Summons of garnishment, upon a tax fi. fa. of the State Revenue Commissioner (plaintiff in error) against Earl H. Tankersly, was issued and served on Metter Lumber Co. (defendant in error). The garnishee answered that at the time of service and up to the time of its answer it was not indebted to Tankersly and did not have in its possession or control any property, money, or effects of Tankersly; that at the time of service Tankersly was indebted to the garnishee $5,079.73; that following the service advances and sales of $10,019.84 were made to Tankersly, increasing the amount of his indebtedness to garnishee to $15,099.57; that Tankersly had paid $7,213.04 on his indebtedness to garnishee, but was still indebted to it $7,886.53 as of the date of its answer. The Commissioner traversed the answer. At the trial all the testimony was by the garnishee's manager and secretary, who testified as follows: The garnishee had a verbal contract with Tankersly to finance him, "to buy timber, then we would buy his lumber back" at market price after he had cut, sawed, and hauled it. The timber was bought in the name of "Earl Tankersly and/or Metter Lumber Company," "where we could claim it if he would pull out and leave," and was charged by garnishee against Tankersly. Tankersly's indebtedness on the date of service represented some of this timber that had been purchased jointly "and re-sold back to Earl Tankersly till it was cut and paid for" and operating expense. The summons of garnishment was served on August 4. From August 7 until November 24, Tankersly was just hauling logs belonging to garnishee out of Fort Stewart. From November 11 and 24 until January 15 Tankersly did sawing and logging on property purchased by garnishee from Stubbs. Garnishee had an arrangement whereby it agreed to pay Tankersly's expenses for operating on its property and to credit all the lumber he brought in above operating cost to his account. From August 4 through December 19 garnishee advanced money to Tankersly approximately weekly and also incurred and paid certain bills, for fuel, Internal Revenue Service, sawmill material, etc., by way of advances of operating money. Tankersly did not furnish statements but would tell garnishee the amount of money it took to operate. Garnishee's manager did not know how much of the money furnished Tankersly to operate on he would get himself; garnishee's manager paid him whatever amount he thought it cost him to operate, but did not know exactly what his operating expenses were, but would take Tankersly's word for it. Tankersly was working for himself, cutting timber owned by garnishee in which Tankersly had no interest. Except for one advance to buy fuel, garnishee's manager could not point out or recall whether the advances made to Tankersly were before or after garnishee received lumber. Garnishee was not at any time in question indebted to Tankersly.
The court directed a verdict for the garnishee. The Commissioner made a motion for new trial on the general grounds and on grounds complaining of the court's direction of a verdict and of the court's not directing a verdict for plaintiff in fi. fa. notwithstanding the verdict against the traverse. The Commissioner assigns error on the court's denial of its motion for new trial.
The issue upon the traverse of the garnishee's answer was whether there was any indebtedness of the garnishee to the defendant, and the burden was on the plaintiff to sustain the traverse by a preponderance of the evidence. Estridge v. Janko, 96 Ga. App. 246, 255 ( 99 S.E.2d 682).
The position of a garnishing plaintiff with respect to the garnishee is no better than the position of the defendant; and if the defendant could not sue and obtain a judgment against the garnishee, then the garnishing plaintiff is not entitled to recover against the garnishee on a summons of garnishment. Adair-Levert, Inc. v. Atlanta Envelope Co., 70 Ga. App. 685 ( 29 S.E.2d 323); Hartsfield Co. v. Zakas Bakery, 50 Ga. App. 284 ( 177 S.E. 825); Singer Sewing Machine Co. v. Southern Grocery Co., 2 Ga. App. 545 ( 59 S.E. 473). Under the evidence in this case, the garnishee never became indebted to the defendant for any amount over and above the amount owed by the defendant debtor to the garnishee at or from the time of the service of the summons of garnishment until the filing of the answer by the garnishee. This being true, there was no indebtedness subject to garnishment.
The plaintiff contends that the arrangement under which $10,019.84 was paid to the defendant debtor by the garnishee during the period from the time of the service of the summons of garnishment until the filing of the answer by the garnishee is subject to the lien of the garnishment proceeding for the reason that it was entered into after service of the summons. The evidence does not show this fact. Code § 46-203 provides: "Whenever a summons of garnishment shall be served on any person, and such person, after the date of such service, shall become indebted to the defendant, such subsequent indebtedness immediately upon its accruing shall become subject to the lien of such garnishment, and no payments made by the garnishee to the defendant or to his order after the date of the service of the garnishment shall defeat the lien of such garnishment. The service of a summons of garnishment shall in all cases operate as a lien on all the garnishee's indebtedness at the date of the service and also on all future indebtedness accruing up to the date of the answer, and such lien shall not be defeated by any payments by the garnishee or overdrafts by the defendant or other arrangements between the defendant and the garnishee. . . ." (Emphasis supplied). The other arrangements referred to are arrangements constituting "fraud and collusion between the defendant and the garnishee." Jacobs Pharmacy Co. v. Southern Bell Telephone Co., 56 Ga. App. 661 ( 193 S.E. 487); W. C. Caye Co. v. Milledgeville Banking Co., 91 Ga. App. 664, 668 ( 86 S.E.2d 717). While Code § 46-203 is to prevent evasions and subterfuges, it does not restrain the right of the parties to contract. Gainesville Feed Poultry Co. v. Waters, 87 Ga. App. 354, 359 ( 73 S.E.2d 771); Ownby v. Wager, 64 Ga. App. 433, 436 ( 13 S.E.2d 686); Hartsfield Co. v. Zakas Bakery, 50 Ga. App. 284 ( 177 S.E. 825). The garnishment lien is subject ". . . to any claim or right of offset in the garnishee, at the time of the service of the summons of garnishment, or subsequently thereto up to the time for the answer, provided the right in the garnishee was not a result of bad faith on its part." Jacobs Pharmacy Co. v. Southern Bell Telephone Co., supra; 38 C.J.S. 442, § 203g.
Since the evidence demanded a finding that the arrangement between the garnishee and the defendant debtor was not a fraudulent scheme solely for the evasion of the garnishment laws of this State, the trial court did not err in directing a verdict for the garnishee or in overruling the plaintiff's motion for a new trial.
Judgment affirmed. Felton, C. J., and Bell, J., concur.