Joel Bailey Davis Inc. v. Poole , 194 Ga. 824 ( 1942 )

1. A judgment by a superior court of this State, requiring a husband to pay to his wife a fixed sum monthly as permanent alimony, is not subject to garnishment at the instance of a creditor of the wife, where, although the debt of the wife was incurred after the judgment for alimony, it did not represent a liability for necessaries or for her maintenance and support.

2. On the facts appearing, the judge properly awarded the fund in controversy to the wife rather than to her creditor.

No. 14258. NOVEMBER 10, 1942. On October 4, 1941, Harry G. Poole Jr., the divorced husband of Mrs. Sara G. Poole, filed in Fulton superior court a petition praying that Mrs. Poole and Joel Bailey Davis Inc. be required to interplead and set forth their respective claims to a fund owing by petitioner to Mrs. Poole under a decree for alimony in her favor and against petitioner. He alleged, that Mrs. Poole was indebted to Joel Bailey Davis Inc., in the sum of $78.66 principal, plus interest and cost, on a judgment rendered against her in a named justice court of Fulton County; that Joel Bailey Davis Inc. caused summons of garnishment to be served on petitioner, and later caused a second summons to be served on him. Joel Bailey Davis Inc. contends that the alimony instalments due by petitioner to Mrs. Sara G. Poole are subject to the process of garnishment, while Mrs. Poole claims that they are not subject. On basis of these and still other averments, the petitioner prayed that he be allowed to pay into court the amount of alimony then due, that the prosecution of the garnishments be enjoined, and that the defendants be required to interplead.

On October 16, 1941, the judge at interlocutory hearing passed an order enjoining the defendants and requiring them to interplead, and providing that on plaintiff's paying into court the $100 admitted by him to be due as alimony, he "stand discharged from this cause and . . from any and all liability of every sort to either of the parties defendant . . by reason of the facts set forth in said original petition." Petitioner paid this amount into court, and afterwards each of the defendants filed an answer asserting claim thereto. Mrs. Poole alleged that the judgment of Joel Bailey Davis Inc. against her did not represent a debt for necessaries or one that was connected with her maintenance and support; and that the fund in controversy, being alimony, was not subject to the process of garnishment. Joel Bailey Davis Inc. contended that the fund was subject to garnishment under the Code, § 46-201, and did not come within any exemption set forth in §§ 46-208, 46-213, and 46-214, which, it was alleged, declare "the only exemptions to the process of garnishment; and since alimony is not exempt, it is subject to process of garnishment."

The case was tried on an agreed statement substantially as follows: On April 11, 1933, Mrs. Poole recovered against Harry G. Poole Jr. a final decree of divorce and a judgment for $40 per month as permanent alimony. During 1940 and 1941, Mrs. Poole and another person operated as partners a described mercantile business, and Joel Bailey Davis Inc. sold to this partnership certain merchandise on credit. It recovered a judgment against the partnership and each of the members in May, 1941, for the amount of this indebtedness, $78.66, besides interest and costs. A summons of garnishment based on this judgment was served on Harry G. Poole Jr., on June 12, 1941, and a second summons was served October 2, 1941, each calling upon him to answer as to what money, property, or effects he had in his possession belonging to Mrs. Poole, or owed to her. "That said garnishee has paid $100 into the superior court of Fulton County, Georgia, and both claimants hereto have filed claims to the fund; and purpose of this action is for the court to decide which claimant is to be awarded the fund held by the court." "That the question before the court is as follows: Is alimony awarded to the wife in her final divorce decree subject to the process of garnishment?"

The court awarded the fund to Mrs. Poole. Joel Bailey Davis Inc. excepted, naming both Mrs. Poole and Harry G. Poole Jr., as defendants in error. The party last named moved to dismiss the writ of error as to him, on the ground that under the terms of the order of the trial court sustaining the interpleader he had ceased to be a party to the case. Notwithstanding there was a decree of divorce as well as a judgment for alimony, the parties to this judgment may for convenience be referred to as the husband and the wife. The obligation of a husband to provide support and maintenance for his wife is a duty imposed by law, and for that reason can not be classified with other obligations which do not involve similar duties. Green v. Beaumont, 179 Ga. 804 (177 S.E. 572). The duty is one in which the public has an interest, and a judgment based thereon, awarding alimony for the wife's future maintenance, simply recognizes a continuation of the duty and compels its performance. Lewis v. Lewis, 80 Ga. 706 (6 S.E. 918, 12 Am. St. R. 281); Estes v. Estes, 192 Ga. 94,96 (14 S.E.2d 681). The garnishment law must be considered in connection with the law relating to alimony, and be so construed and applied as not to defeat its controlling purpose. Code, §§ 30-201, 46-201. Accordingly, although a judgment by a superior court of this State requiring a husband to pay to his wife a fixed sum monthly as permanent alimony may for some purposes be classed as a debt, it is more than an ordinary debt; and whether it might in any event be subject to the process of garnishment, it could not be subjected to such process, where to do so would pervert the decree from its intended purpose of providing a support for the wife.

While some courts, in determining whether such a judgment for alimony might be reached by the wife's creditors, have made a distinction between debts contracted by her before and after the decree, and have generally given no standing whatever to such pre-existing debts of the wife, a debt subsequently incurred by her, if contracted for her support and maintenance, may stand upon a different footing. Whether in the latter case the judgment for alimony might be subject to garnishment at the instance of the wife's creditor, no such proceeding would be authorized where the debt of the wife does not represent a liability for necessaries and bears no relation to her maintenance and support. In the instant case it appeared that although the debt in question was incurred after the decree for alimony, it arose merely by reason of a sale of merchandise to a mercantile partnership of which the wife was a member; and there being nothing further to show that it was in any way connected with her maintenance and support, the judge did not err in holding that the judgment for alimony was not subject to the process of garnishment, and in awarding the fund to her rather than to her creditor. Whether the garnishment might have been sustained in other circumstances need not be decided. On the general subject, see Bates v. Bates, 74 Ga. 105; Knox v. Knox, 148 Ga. 253 (96 S.E. 337); Caldwell v. Central of Georgia RailwayCo., 158 Ga. 392 (123 S.E. 708); Montgomery v.Montgomery, 180 Ga. 120 (177 S.E. 337); Kirby v.Johnson, 188 Ga. 701 (2 b) (4 S.E.2d 643); Hannah v.Hannah, 191 Ga. 134 (11 S.E.2d 779); Attaway v.Attaway, 193 Ga. 51 (17 S.E.2d 72); Fickle v. Granger,83 Ohio, 101 (93 N.E. 527, 32 L.R.A. (N.S.) 270, note); Schooley v. Schooley, 184 Iowa, 835 (169 N.W. 56, 11 A.L.R. 110, note); Malone v. Moore, 204 Iowa, 625 (215 N.W. 625, 55 A.L.R. 356, note); 4 Am. Jur. 651, § 160; 17 Am. Jur. 410, 415, §§ 501, 508.

Since the judgment must be affirmed, and our decision can therefore do no harm to Harry G. Poole Jr., it is unnecessary to rule on his motion to dismiss the writ of error as to him. Cf. Green v. Perryman, 186 Ga. 239 (197 S.E. 880); Trust Co.of Georgia v. Brown, 186 Ga. 496 (197 S.E. 803).

Judgment affirmed. All the Justices concur.