Davison-Paxon Co. v. Hume , 59 Ga. App. 166 ( 1938 )

Sutton, J.

Davison-Paxon Company obtained a judgment' against W. W. Hume in the municipal court of Atlanta, and on' appeal to the appellate division of that court the judgment was affirmed. Thereupon Hume sued out a writ of error to this court, obtaining a supersedeas by filing a pauper affidavit in proper form as provided in Code, § 6-1002 (2). It further appears that the trial judge, on the date the affidavit was filed, passed an order directing 'the clerk and the marshal of the court to wholly cease from any further proceedings whatsoever in said cause. While the writ of error was pending in this court the plaintiff sued out process of garnishment and caused summons to be issued to the employer of Hume. Hume filed a written motion to dismiss the garnishment proceeding on the ground that the judgment in the-main case had been superseded and that the judgment therein was not a final judgment. The court dismissed the proceeding, overruled a motion for new trial, which judgment was affirmed by the appellate division of the municipal court, and the respondent excepted. It is conceded by both parties that the only issue is whether or not a final judgment had been obtained in the main case.

By an act of the legislature (Ga. L. 1933, p. 35), section 5265 of the Code of 1910 relating to garnishment was amended so as to provide that no garnishment shall issue against the daily, weekly, or monthly wages of any person in this State until after final judgment has been obtained in the main suit. The law, including the amendment, now appears as § 46-101 of the Code of 1933. “A suit is pending in the sense of section 5265 of the Civil Code (1910) [§ 46-101 of the Code of 1933], relative to the grounds for the issuance of garnishment proceedings, although a judgment may in fact have been rendered in the suit, when there still remains a legal possibility that the judgment may be reversed and that the defendant may ultimately prevail, as when a bill of exceptions to the judgment has been tendered ánd certified by the trial judge and has been filed with the clerk of the Court of Appeals.” Carrollton Bank v. Glass, 35 Ga. App. 89 (1) (132 S. E. 238).

Inasmuch as the main suit was pending, because it had been taken by writ of error to this court, the judgment obtained in the trial court was not such a final judgment as would authorize the issuance of garnishment against the daily, weekly, or monthly wages of the defendant, a wage earner, and the court properly sustained the motion to dismiss the garnishment proceeding.

Judgment affirmed.

Felton, J., concurs. Stephens, P. J., dissents.