Commercial Credit Co. v. Tompkins , 38 Ga. App. 466 ( 1928 )

Bell, J.

U. H. Tompkins and A. J. Connell, trading as Tompkins-Cormell Motor Company, sued out an attachment for $639.45 against Commercial Credit Company, on the ground that the alleged debtor was “a nonresident corporation.” Garnishments were issued- and served on P. H. Clark and Mrs. J. R. McCarthy. _ Mrs. Me-. Carthy made her answer within the time required. Clark had not. answered at the time of the trial which resulted in the verdict now complained of. The answer of Mrs. McCarthy was to the effect that on or about August 11, 1926, she bought oE the Foreman Motor Company, of North Augusta, S. C., a certain automobile which she was to pay for in monthly installments of about $40 each, and that before the first installment was due she was notified by “.Commercial Credit Company” of the maturity of that installment, and has received like notices as to the maturity of all succeeding installments; and that while she has made her payments to Commercial Credit Company, she is unable to say whether she is indebted to that company or Foreman Motor Company. She set out that, from the time of the service of the summons and the time of her answer she had become indebted in the sum of $80.50 to one or the other of these companies, the same being the installments for two certain months stated, but that she was not otherwise indebted.

•• Later on, “ Commercial Credit Company of Georgia” filed a claim to “said funds in the hands of said garnishees,” and, by giving a bond, dissolved the garnishments. The issue tried in the court below was whether the funds sought 'to be garnished were due to ■Commercial Credit Company, as defendant in attachment, or to Commercial Credit Company of Georgia, as claimant.

The jury returned the following verdict: “We, the jury, find the issues in favor of plaintiff, and that the amount due by garnishee at time of service of garnishment be applied to this debt, to wit: $995.95.” Commercial Credit Company of Georgia, claimant, has brought the case to this court upon exceptions to the overruling of ■its motion for a new trial.

Counsel have argued a number of questions which we deem it proper not to decide, in view of the condition in which we find the record. W.e will pass upon the one question of whether there was evidence to support the verdict, — a question which, in our opinion, should be answered in the negative. Treating all the proceedings as regular and assuming that in all other respects the verdict is a legal one, the evidence shows without dispute that the indebtedness of. P. H. Clark was to Commercial Credit Company of Georgia, and not to the defendant in attachment, and that, while Mrs. McCarthy was indebted to “Commercial Credit Company, Baltimore, Maryland,” which might, perhaps, have been the defendant in attachment, the amount of such indebtedness did not exceed $483, a sum ranch less than the amount of the verdict against the claimant. ■

The plaintiffs have obtained a verdict against the claimant for $995.95, whereas in no view of the evidence would it sustain a finding of an indebtedness by either or both of the garnishees to the defendant in attachment of more than $483. It follows that the verdict in the amount stated is unsupported, and for that reason should have been set aside on the claimant’s motion for a new trial.

We can not agree with counsel for the defendants in error that the verdict should stand because it appeared that the claimant was either identical with, or the agent of, the defendant in attachment. Whatever might have been the effect of either of these facts if shown, the plaintiffs have alleged that the defendant in attachment is a corporation which is a nonresident of the State of Georgia. By this allegation they are bound. New Zealand &c. Ins. Co. v. Brewer, 29 Ga. App. 772 (6) (116 S. E. 922). The evidence showed without dispute that Commercial Credit Company of Georgia is a corporation duly created under the laws of this State. There was proof of an interlinking of these companies in the handling of their business, including the fact of common officers or agents, but it indisputably appeared that Commercial Credit Company of Georgia was, as to the matters involved in this case, transacting business in its own name, and,'under the evidence, it could not have been found as a matter of fact that the indebtedness of P. H. Clark to this company was an indebtedness to the defendant in attachment, which, according to the plaintiffs’ own allegations, was a corporation not residing in Georgia, and thus an entirely distinct entity from the other company.

We have carefully examined the record and have found no point-upon which we can say that the judgment ought to be affirmed.

Judgment reversed.

Jenlcvns, P. J., and Stephens; J., concur.