Bluthenthal & Bickart v. Silverman , 113 Ga. 102 ( 1901 )

Simmons, C. J.

The plaintiffs sued out an attachment against Jake Silverman, and in aid thereof had a summons of garnishment issued against Mrs. S. Silverman. The garnishee answered not indebted, and this answer was traversed hy the plaintiffs. Upon the trial of the case before a jury in a justice’s court it appeared that the defendant had sold to the garnishee a stock of goods for a certain amount, receiving a portion thereof in cash, and leaving the balance in the hands of the garnishee for the purpose of paying off the defendant’s indebtedness to certain creditors. Such creditors were not parties to this arrangement for the payment of their claims. The garnishee paid off a few of the debts of the defendant before the service of the summons of garnishment, but at the time of such service had remaining in her hands more than enough to pay the claim of the plaintiffs. The jury found against the traverse, and the plaintiffs sued out a writ of certiorari. Upon the- hearing in the superior court, the judge overruled the certiorari. The plaintiffs excepted.

When the defendant sold his stock of goods to the garnishee at a fixed price, she became indebted to him for that amount. This indebtedness was reduced by the amounts she paid to him and, by his direction, to his creditors before the service of the summons of garnishment, but she was still indebted to him for sucb unpaid balance as remained in ber bands. To tbe amount of sucb balance sbe was still bis' debtor. Sbe can not be regarded as tbe debtor of tbe creditors or as bolding tbe fund for them; for, except as to those whose claims were actually paid, tbe creditors do not appear to have been parties to tbe agreement or to have subsequently accepted or ratified it. There was no promise made to tbe creditors by tbe garnishee that sbe would pay tbe money in ber hands to them. It was merely a deposit, with direction for its appbcation, and subject to revocation by tbe depositor. Tbe case is therefore distinguishable from Watkins v. Pope, 38 Ga. 514, and is controHed by Trustees v. Pace, 15 Ga. 486, Mayer v. Bank, 51 Ga. 325, and Cox v. Reeves, 78 Ga. 543. See also Wimberly v. Bryan, 55 Ga. 198, and Martin v. Copeland, 77 Ga. 374. The balance left in tbe bands of tbe garnishee at tbe time of tbe service of tbe summons of garnishment was tbe property of tbe depositor, subject to sucb appbcation as be might direct, and, therefore, subject to process of garnishment by bis creditors. Tbe certiorari should, therefore, have been sustained.

Judgment reversed.

All the Justices concurring.