Smith v. Johnston , 71 Ga. 748 ( 1884 )

Jackson, Chief Justice.

1. A constable may be ruled for money collected by him from a garnishee, by the defendant in execution, if he be entitled to the money as exempt by reason oí its being. his wages as a laborer. Any “proper person,” if he refuse to pay it on demand, may rule him. Code, §3950; Acts of 1822 and 1841; Cobb’s Dig., pp. 578, 579. By a proper person, we understand “ the party entitled thereto, ’’ in the language of the same section, 3950. That the defendant in execution may be the proper person, see 8 Ga., 153. That case was where the rule was for balance due defendant, but the principle covers a case where all the money is his by law. See also 61 Ga., 343.

2. The waiver of exemptions in the paper sued on covers property, such as homestead and exemptions of personalty, under the laws exempting so much property ot everybody, not the wages of a laborer. The parties had in contemplation those exemptions, not this. If this were intended, it should have been explicit. 61 Ga., 345, 354.

3. The garnishee may, in his answer, set up that the fund is not subject to garnishment, and if that answer'be not. traversed by the plaintiff,-it will discharge him, with costs because he cannot be garnished for a debt due as laborer’s-', wages Code, §3554; 67 Ga., 38. Such monthly wages asín this case are exempt. 46 Ga., 466-8; 54 Ib., 108; 25 Ib., 571, But it does not follow that a judgment that the garnishee pay the money into court, especially where the garnishee does not answer that the debt is due for wages, binds the defendant so that he cannot contend for the money when paid in. He is not responsible for the neglect of the garnishee to put in his claim in the answer, nor for a judgment against the garnishee, to the extent that he is estopped from contesting for and claiming the money when paid in. He is no party to the issue between the plaintiff and the garnishee. Indeed, that he may still claim the fund as his money when paid in was distinctly ruled by this court in Banks vs. Hunt et al., this term.

There we say: “ When paid into court, the defendant, if he sees proper to dc so, may claim its exemption from the garnishment on that ground, or he may waive his right to have it exempted.”

Therefore, the law constrains tis to hold, with the court .below, that the defendant is entitled in law to this money, much as we might, as individuals, think he ought to pay the plaintiff for the clothes he wears.

Judgment affirmed.