Southern Ry. Company v. Coleman , 80 Ga. App. 227 ( 1949 )

The wages of persons who reside out of this State and which have been earned wholly without this State are subject to garnishment in this State though the case be not one brought by writ of attachment.

DECIDED OCTOBER 21, 1949. Mrs. Sarah J. Coleman sued Phil H. Coleman for divorce and alimony in Fulton Superior Court and obtained personal service on the defendant by getting him to acknowledge service of her petition at a time when he was stationed in California in the Army. An agreement was entered into between the parties with respect to alimony and such agreement was made the judgment of the court in that case. Thereafter, a garnishment was served upon Southern Railway Company seeking to obtain such property or funds of the defendant, Phil H. Coleman, as might be in the hands of Southern Railway Company in Atlanta, Fulton County, Georgia, and the garnishee answered, setting up that Phil H. Coleman was a non-resident of the State of Georgia, had never been a resident of the State of Georgia, but was a resident of the State of North Carolina, and that such sums as were in the hands of the garnishee and owing to the defendant were due under a contract entered into, performed and payable in that State. It was further stated that because of these facts the sums owed were not subject to garnishment. Mrs. Coleman then filed a motion to strike said answer as being insufficient in law and not responsive and also filed a traverse. When the case was called for hearing it was stipulated between the parties that all issues could be tried by the judge sitting without a jury, and it was further stipulated that all facts set out in the answer of Southern Railway Company were true except for the conclusions that the funds were not subject. At the trial upon the issues made by the traverse, Mrs. Sarah J. Coleman introduced the following evidence, to wit: her petition for divorce and for alimony for herself and two minor children against Phil H. Coleman in Fulton Superior Court, the defendant's acknowledgment of service in that suit, and a signed agreement made by him for the payment of certain amounts of alimony and his consent that that agreement be made the order of the court in the case and the order of the court in which it was so made. After argument the demurrer and traverse were sustained and judgment was rendered against Southern Railway Company. To the order and judgment of the court sustaining the plaintiff's motion to strike and sustaining her traverse and rendering judgment against Southern Railway Company, garnishee, the Southern Railway Company excepted. The sole question presented by this record is whether wages of persons who reside out of the State, which wages have been earned wholly without the State, are subject to garnishment in a case which is not brought by writ of attachment.

Phil H. Coleman, the defendant in the divorce and alimony case, voluntarily submitted himself to the jurisdiction of Fulton Superior Court by acknowledging service, waiving process, and by consenting to the rendition of a judgment by the court against him and obligating him to pay a stated amount of alimony for his wife and for the support of his minor children. That consent judgment conferred jurisdiction of the defendant upon the Superior Court of Fulton County. "1. One named as a defendant in an action may legally appear therein by filing with the record a specific statement in writing signed by him, waiving service, and specifying that he enters his appearance in the case. 2. Such an appearance by the defendant in a case pending in a court of a foreign State, which has jurisdiction over the subject-matter of the suit, is sufficient to give the court jurisdiction of his person, and authorize it to render a general judgment against him, although he may have been in the State of his residence at the time of signing the entry of appearance." Epps Leabow v.Buckmaster, 104 Ga. 698 (1, 2) (30 S.E. 959). See alsoTate v. Leres, 59 Ga. App. 6, 10 (200 S.E. 325), which states that, "There is a well-settled rule of law that a general appearance by a defendant in any cause will give the court jurisdiction of his person . . and `a general appearance waives not only all defects in process, but even absence of process itself.'"

In Harvey v. Thompson, 2 Ga. App. 569 (3) (60 S.E. 11), this court said: "A garnishment can be lawfully served upon a foreign corporation by making personal service upon any agent of the company in this State; and such corporation doing business in this State, may for the purposes of suit be treated as a resident of this State, and of any county therein in which it has an agent upon whom service can be perfected. In such suit it is immaterial that the principal debtor and garnishee are both non-residents, and that the debt garnished was contracted and is payable elsewhere, and in a State by the laws of which it would be exempt from garnishment. Harris v. Balk, 198 U.S. 215."

If it be conceded that the situs of the debt owing the defendant by the garnishee be elsewhere than in the State of Georgia for all other purposes, we think that the fact that personal service and appearance and pleading by the defendant was had in the divorce case, established the situs of that debt in Georgia insofar as the power of a court of this State to enforce its collection, and that the garnishee cannot be heard to say that the funds in its hands are not available to the courts of this State for the purpose of enforcing a judgment rendered by one such court, where jurisdiction of both parties was had by the court, and a judgment against the principal defendant was entered with his consent. As to this point the ruling in Baxter Co. v. Andrews, 131 Ga. 120 (62 S.E. 42), is controlling adversely to the contentions of the garnishee. In this connection we feel inclined to agree with counsel for the defendant in error wherein they state in their brief that "It would be a strange anomaly of law, indeed, that would say `We have jurisdiction of [the defendant] to render a judgment, and order him to support his children by payment of alimony, but not jurisdiction to collect it!'" See Harvey v. Thompson, 128 Ga. 147 (57 S.E. 104).

For these reasons, and in view of the authorities cited, we hold that the court did not err in sustaining the motion to strike and in sustaining the traverse of the plaintiff to the answer of the garnishee, and in entering judgment against the garnishee.

Judgment affirmed. Sutton, C. J., and Felton, J., concur.