Rainey v. Eatonton Co-Op. Creamery Inc. , 69 Ga. App. 547 ( 1943 )

1. "A garnishment proceeding is a distinct suit against a separate party and for an entirely new cause of action."

2. If the defendant in execution gives a dissolution bond in a garnishment proceedings, such a bond changes the parties by changing the issue from one between the plaintiff and the garnishee, to an issue between the plaintiff and the defendant.

3. If there be a claimant, then either the claimant, or the plaintiff, or both may traverse the answer of garnishment. But before the claimant becomes a party to the garnishment suit, he must file a claim to the property or give a bond to dissolve the garnishment. The giving of such a bond amounts to a filing of the claim.

4. Where the defendant gives no bond to dissolve the garnishment and there is no claim filed and the only traverse to the answer of the garnishee was by the plaintiff in execution, the general rule is that the burden of proof is on the plaintiff in execution, the party traversing the answer of the garnishee.

5. "A traverse of a garnishee's answer is sufficient if it merely denies the truth of the answer. The traverse may be amplified at the option of the plaintiff, but nothing more is necessary to bring in question the liability of the garnishee to a garnishing creditor than an unqualified, though general, denial of the truth of the garnishee's answer."

6. If there be an issue as to whether an alleged indebtedness is a mere cover for fraud, such an issue may be tried upon an unqualified, though general denial, of the truth of the garnishee's answer.

7. The wife of the defendant in execution can not be forced by an amendment to the plaintiff's traverse to the garnishee's answer, to file a claim to the property in question against her will, although it is true that under some circumstances, the garnishee, in order to protect himself against any possibility of paying out the money in question twice, may vouch a third party into court.

8. In the instant case, there being no pleading or sufficient proof to show any transaction between the husband and wife, the onus is upon the plaintiff to show fraud or collusion, if any.

9. The entries on the ledger sheet from the books of the bank were not sufficiently connected up so as to make them admissible over the objection that they were immaterial and irrelevant.

10. The letter it was sought to introduce contained self-serving declarations, and was properly not allowed in evidence when this objection was made to it.

DECIDED JUNE 17, 1943. There came on for trial in the superior court, before the judge and a jury thereof, an appeal from a justice's court, the case of M. S. Rainey, as plaintiff in execution, v. J. E. Little. defendant in execution, and the Eatonton Co-operative Creamery Inc., garnishee, upon a traverse duly filed to the answer of garnishment filed therein and in said justice's court. The judge of the superior court refused to allow an amendment of the traverse and upon the completion of the evidence, directed a verdict in favor of the Eatonton Co-Operative Creamery Inc., garnishee, and against the plaintiff in execution. To which rulings the plaintiff in execution, M. S. Rainey, excepted. Hereinafter, the plaintiff in execution will be referred to as plaintiff; J. E. Little, the defendant in execution, will be referred to as the defendant; and the Eatonton Co-Operative Creamery Inc., as the garnishee. The evidence was as follows: "Plaintiff testified that the consideration of the debt upon which his judgment against J. E. Little was based was mostly feed-stuff for dairy cows; that he did not know to whom the cows belonged. W. J. Knowles testified: I own the land on which J. E. Little and his wife live and have rented the same to J. E. Little for the past three years. There is a dairy operated on it. I do not know who operates or owns the dairy. I have never dealt with Mrs. J. E. Little. Whether she owns the cows or dairy or not, I do not know. They live on my place and I rent to J. E. Little. When I go to the barn, I see both Mr. and Mrs. Little milking cows. That is all that I know. Plaintiff offered in evidence twenty-five checks issued by the Eatonton Co-Operative Creamery Inc., garnishee, on the Farmers Merchants Bank of Eatonton, dated consecutively and twice monthly, beginning with January 5, 1941, and continuing through and including January 5, 1942, payable to Mrs. J. E. Little, and labelled `Producer No. 124,' for payments to creamery customers for dairy products handled through the Creamery. All of said checks had been paid and cancelled. The amounts ranged from $39.15 on March 3, 1941, to $136.15 on Jan. 5, 1942. November 5, 1941, check was $121.53; Nov. 20, 1941, check was for $110.79; Dec. 5, 1941, check was for $109.70; Dec. 20, 1941, check was for $113.35; plaintiff also offered in evidence twenty-four similar checks covering the twelve months of 1940, ranging from $28.43 for Jan. 5, 1940, to $53.34 for December 20, 1940. All checks were dated the 5th and 20th of each month. One of said checks was endorsed `J. E. Little'; checks dated 2/20 1940; 5/5 1940; 7/20 1940 and Dec. 5, 1941, were endorsed by Mrs. J. E. Little. The other 44 checks were endorsed `Mrs. J. E. Little, by J. E. Little.' All of said checks were brought into court under notice to produce served on the garnishee, and were admitted in evidence without objection." The court allowed in evidence the note and execution upon which the judgment had been obtained and upon which judgment the garnishment in the present case issued. 1. "`A garnishment proceeding is a distinct suit against a separate party, and for an entirely new cause of action.'" Anderson v. Ledbetter-Johnson Contractors, 62 Ga. App. 732 (2) (9 S.E.2d 860). And the garnishee may answer and dissolve the garnishment by giving a bond; but if the defendant gives the dissolution bond in garnishment proceedings, such a bond changes the parties by changing the issue from one between the plaintiff and the garnishee, to an issue between the plaintiff and defendant. Jackson v. Hogan, 18 Ga. App. 219 (2) (89 S.E. 184); Code, § 46-401; Leake v. Tyner, 112 Ga. 919 (38 S.E. 343). If there be a claimant, then either the claimant or the plaintiff or both may traverse the answer of garnishment. Code, § 46-303. But before the claimant becomes a party to the garnishment suit, he must file a claim to the property or he must give a bond to dissolve the garnishment under the provisions of Code, § 46-402; Tarver v. Jones, 34 Ga. App. 716 (131 S.E. 102). The giving of the bond amounts to a filing of a claim. Gordon v. Wilson, 99 Ga. 354 (2) (27 S.E. 762). The physical presence alone at the trial does not bind the claimant when he is not a party. Tarver v. Jones, 34 Ga. App. 716 (2) (131 S.E. 102); Drought v. Poage, 3 Ga. App. 178 (59 S.E. 728).

Mr. J. E. Little, the defendant, gave no bond to dissolve the garnishment. Mrs. J. E. Little filed no claim, gave no bond to dissolve the garnishment, and did not traverse the answer of the garnishee. Hence she was not a party to the garnishment suit, nor was she a party to the issue made by the plaintiff's traverse to the garnishee's answer. The general rule is that the burden of proof is on the party traversing the answer of the garnishee.Rockmart Bank v. Nix, 14 Ga. App. 238, 239 (80 S.E. 673). In the instant case the only traverse to the answer of the garnishee was by the plaintiff. In the justice's court the plaintiff offered an amendment to his traverse of the answer of the garnishee, which amendment in effect sought to have the court force Mrs. Little to file a claim to the property in question and to come in as a party to the garnishment suit. The amendment set up that the defendant's wife was trying fraudulently to avoid the garnishment by claiming the alleged indebtedness was due to the wife instead of the husband, and that the alleged indebtedness of the wife, as stated in the traverse, was a mere cover for fraud. This amendment was allowed in the justice's court, over her objection, and she was made a party to the garnishment suit. However, in the superior court, on objection by the garnishee, the amendment was not allowed or was stricken. Bullock v. Butts, 33 Ga. App. 7 (124 S.E. 905). Mrs. Little was not a party to the garnishment suit; and there was no attempt by the garnishee to vouch Mrs. Little into court, in order to protect the garnishee against any possibility of twice paying out the money in question. Sasser v. Campbell, 9 Ga. App. 177 (70 S.E. 980). There was an answer by the garnishee that he was indebted to the defendant in no amount; and this is sufficient. "The traverse may be amplified at the option of the plaintiff, but nothing more is necessary to bring in question the liability of the garnishee to a garnishing creditor than an unqualified, though general, denial of the truth of the garnishee's answer." Barkley v. May, 3 Ga. App. 101 (59 S.E. 440). The foundation of the suit here, without which it would not be maintainable, is not fraud. The gist of the garnishment suit is that the garnishee owes the defendant (and that the indebtedness is subject to the garnishment). And the simple direct statement in the answer of the garnishee, that he owed the defendant nothing, and the simple direct statement by the plaintiff in his traverse that he denies such answer, is narrowing the whole field of controversy until there is evolved a single point, affirmed by one side and denied by the other, called the issue, upon which the parties are to go to trial. It is permissible under such pleadings, without any further or special pleadings, for the plaintiff, under his general denial, to show in any legal way he can that the garnishee owes the defendant, and that such indebtedness is subject to his garnishment; for if the court were to require a renewal in the form of an amplification of the contentions of either of the parties by further pleadings, with or without distinct names, it might start all over the process of narrowing the field of controversy by the pleading to the real issue.

We do not think it necessary to have special pleading in order to show fraud, if the fraud was merely for the purpose of covering up the indebtedness of the garnishee to defendant.Fouts v. Gardner, 157 Ga. 362 (121 S.E. 330). Thus, an amendment by the plaintiff of its traverse, setting up facts showing that there was such fraud, would not have been objectionable merely because it thus amplified the denial of the truth of the garnishee's answer. See Georgia Power Co. v.Decatur, 170 Ga. 699, 718 (5) (154 S.E. 268). But the amendment by the plaintiff was tendered in its entirety for the purpose of having the court force Mrs. Little to file a claim to the property in question, and thus to become a party to the the suit. This the plaintiff could not do; for it was for Mrs. Little to determine whether she wished to file a claim. Massoud v.Lamar, Taylor Riley Drug Co., 18 Ga. App. 398 (89 S.E. 442). Thus, under the pleading as it existed at the time of the offering of the amendment, the plaintiff had an ample remedy; for it was permissible for him to show under the pleading that there was a mere cover-up transaction, and that in fact the property was the property of the defendant, or to show in any legal way that the property in question was that of Mr. Little, and if he did this he could obtain his judgment against the garnishee. As to whether the garnishee wished to stand upon its simple denial of any indebtedness to the defendant and perchance run the risk of having to pay the claim twice, by their failing to vouch Mrs. Little into court, was a matter for the garnishee to determine at its peril, and not a matter for determination by the plaintiff. The court did not err in not allowing or striking the amendment.

2. This was the only traverse filed in the garnishment case, and the defendant had not given any bond to dissolve the garnishment. Therefore it seems to us that here the general rule applies on the trial of the traverse of the plaintiff to garnishee's answer, which is that the burden is on the plaintiff, the party traversing the answer of the garnishee. "A married woman may make contracts with other persons as if she were single. Whenever a transaction is between husband and wife, and creditors of the husband attack it for fraud, if the wife claim the property purchased or received from her husband, the onus is on her to make a fair showing about the whole transaction; but where she has a separate estate, and purchased from others than her husband, and the property is levied on as the property of the husband, the onus is upon the creditor to show fraud or collusion, or that the wife did not have any separate estate or means wherewith to purchase the property." Richardson v. Subers, 82 Ga. 427 (9 S.E. 172); Code, § 53-505.

In the state of the pleadings in this case, before any presumption arises under the Code, § 53-505, the transaction between husband and wife, such as is there stated, must first be shown. Here no such transaction is shown. The checks being payable to her, we do not think that it was incumbent upon her, under the facts of this case, to prove why they were payable to her, any more than it would have been incumbent upon any other person under like circumstances. Thus, the burden being upon the plaintiff, the fact that the defendant rented a place known as the "Knowles" place; that no dairy was thereon (however, the owner of the place had nothing to do with the dairy, and it was put thereon after he had rented it, and he did not know who owned or operated it); that Mr. Little and his wife lived on said "Knowles" place; that before and after service of the garnishment the creamery gave to Mrs. Little checks which indicated that they were given as payment for dairy products (it should be noted that there is no evidence to connect the checks in any way with Mr. Little) does not show that the garnishee had any money or property in its hands that belonged to the defendant. Neither is there any evidence to connect the products sold by Mrs. Little to the creamery with products which came from the "Knowles" place, which was rented by Mr. Little.

After the plaintiff had introduced the foregoing evidence, he tendered in evidence ledger sheets from the books of the Farmers and Merchants Bank, which showed that Mrs. Little had no account there; that Mr. Little had had a deposit there at one time, but had later closed the account; that he later had opened an account under J. E. Little, special, and had then closed this account by withdrawing the entire amount; and that the ledger sheets did not show the source of any deposit. Said ledger sheets were ruled out. We think the judge was correct in ruling them out, on the ground that they were immaterial and irrelevant, for there was no explanation of the entry on the ledger sheet, and no sufficient circumstance proved which showed that any of the entries in any way related to the issue on trial. In short, the entries on the ledger sheets were not sufficiently connected up so as to make them admissible.

3. What the garnishee told the plaintiff, or his attorney, in the nature of an admission contrary to the answer of the garnishee, could be testified to by the person to whom such admission was made. But the person to whom such statement was made can not, by the mere process of reducing it to writing in the nature of a letter, change the hearsay character of the evidence, and thus introduce the letter. The other part of the letter was composed of self-serving declarations. Therefore the letter containing the hearsay admissions and the self-serving declarations was properly ruled out.

The direction of the verdict was not error for any reason assigned; and none of the rulings of the court complained of shows cause for a reversal of the judgment.

Judgment affirmed. Broyles, C. J., and Gardner, J., concur.