Herrington v. Wimberly , 177 Ga. 536 ( 1933 )

Bell, J.

Mrs. H. S. Herrington brought suit against Mrs. W. E. Wimberly Jr., and Paul Doyal “as tax-commissioner of the State of Georgia,” to recover a money judgment against Mrs. Wimberly, and to obtain an injunction and receivership with respect to the salary being earned by her as an employee of the State in the department of the tax-commissioner. The court sustained general demurrers severally filed by the defendants, and dismissed the petition; and the plaintiff excepted. As to the indebtedness of Mrs. Wimberly, the plaintiff alleged the following facts: The plaintiff with this defendant executed to Mrs. Carrie M. Selkirk a joint promissory note for the sum of $500, upon which the payee obtained judgment and execution against the plaintiff and Mrs. Wimberly in the sum of $722.55, including principal, interest, and costs. The plaintiff has paid the sum of $450, which is more than her share or just proportion of the joint indebtedness, and it is prayed that Mrs. Wimberly be required “to pay to your petitioner and to contribute her pro rata share toward the payment of said execution and judgment.” The petition made the following allegations as basis for the prayer for injunction and the appointment of a receiver. The defendant Mrs. Wimberly is employed by the tax-commissioner at a stated salary; and being thus employed in a governmental department, her salary is not subject to garnishment. She has no visible property “upon which petitioner could enforce her right against the said defendant,” and “the only manner in which petitioner could enforce her right of contribution . . is for a receiver to take over and collect the salary” of this defendant. It was prayed that Mrs. Wimberly be enjoined from collecting such salary, and that Doyal as tax-commissioner be required to pay the same to a receiver to be appointed by the court.

Considering the facts in their inverse order, we have no hesitancy in holding that the petition failed to set forth a cause of action for the grant of an injunction or the appointment of a receiver. The salary of Mrs. Wimberly as an employee in a- governmental department was not subject to the process of garnishment. McLellan v. Young, 54 Ga. 399 (21 Am. R. 276). Nor could the defendant Doyal in his official capacity as tax-commissioner be required to answer such a process. Morgan v. Rust, 100 Ga. 346 (28 S. E. 419); Southern Mining Co. v. Lowe, 105 Ga. 352 (31 S. E. 191). The same policy which prevents the. garnishment will deny the right to injunction and receivership with respect to such salary. McConnell v. Floyd County, 164 Ga. 177 (9) (137 S. E. 919). The petition failed to state a cause of action for any relief as against the defendant Doyal, and as to him the court did not err in sustaining the demurrer and dismissing the petition.

One of the contentions of counsel for Mrs. Wimberly makes it necessary to refer to an exhibit attached to the petition, in the nature of a contract made by Mrs. Herrington and Mrs. Wimberly with other parties, from which it appeared that the note referred to in the petition was given for part of the purchase-money of a certain business bought by Mrs. Wimberly and thereafter sold by her to Mrs. Herrington. It is insisted that it appears from this exhibit that the payment of the note was assumed by Mrs. Herrington, and that for this reason she would not be entitled to contribution from Mrs. Wimberly. The petition shows that the note was signed both by Mrs. Wimberly and Mrs. Herrington, and alleges that it was a joint obligation. While the copy of the contract attached to the petition does show that the business was resold to Mrs. Herring-ton, it is silent as to whether Mrs. Herrington assumed the balance of the purchase-money due by Mrs. Wimberly thereon, and it does not appear either that the parties were not equally liable on the note as alleged, or that the liability as between the obligors was in any wise changed by subsequent agreement. According to the allegations, which are not disproved by the exhibit, Mrs. Herrington was as to Mrs. Wimberly liable for only one half of the amount of the note, and she has paid substantially more than this amount. The Civil Code, § 4588, provides: “In cases of joint, or of joint and several, or of several liabilities of two or more persons, where all are equally bound to bear the common burden, and one has paid more than his share, he is entitled to contribution from the others.” Under the principle thus stated, the petition set forth a cause of action for a recovery of the difference between half of the indebtedness and the larger amount paid by Mrs. Herrington. The amount of this difference may be calculated from the facts alleged.

It is further insisted that the petition is fatally defective, because it does not appear that the plaintiff has paid off the entire indebtedness and caused the fi. fa. to be transferred to her, as required by the Civil Code, § 5971. There is no merit in this contention, and the cases cited in support of it (Cureton v. Cureton, 120 Ga. 559, 48 S. E. 162; Warthen v. Mellon, 132 Ga. 113 (3), 63 S. E. 832, 131 Am. St. R. 184) are not in point. The plaintiff is not seeking to control the fi. fa., but the petition is based upon the theory of an implied contract upon the part of the defendant to bear her proper share of the common burden. Sherling v. Long, 122 Ga. 797 (50 S. E. 935). In such a case it is unnecessary to show that the common debt has been paid in full either by the plaintiff or by any other person. In some of the decisions there are expressions which might imply that the whole debt must be paid before an action for contribution will lie, but such was not the rule at common-law, nor is there any such requirement under the Code. See, in this connection, Sawyer v. Lyon, 10 Johns. (N. Y.) 32; Kalamazoo Trust Co. v. Merrill, 159 Mich. 649 (124 N. W. 597); Pixley v. Gould, 13 Ill. App. 565, 569; 5 Pom. Eq. Jur. 5178, § 2341. Even though a plaintiff may sue for too much, the petition is not subject to general demurrer if it states a cause of action for a definite part of the amount claimed. Mayor &c. of Athens v. Smith, 111 Ga. 870 (2) (36 S. E. 955); Douglas &c. Ry. Co. v. Swindle, 2 Ga. App. 550 (59 S. E. 600). It is further true that where a plaintiff is seeking both legal and equitable relief and states a cause of action at law, the petition should not be dismissed in its entirety merely because it fails to allege sufficient facts to authorize the grant of the equitable relief sought. Gillis v. Hilton & Dodge Lumber Co., 113 Ga. 622 (2) (38 S. E. 940); Neal Lumber & Mfg. Co. v. O’Neal, 175 Ga. 883 (166 S. E. 647). The court erred in sustaining the general demurrer filed by Mrs. Wimberly.

Judgment affirmed in part, and reversed in part.

All the Justices concur.