Durden v. Belt , 61 Ga. 545 ( 1878 )

Bleckley, Justice.

Belt was debtor to Daniels, by judgment in a superior court, and creditor to Davis, by judgment in a justice court. Daniels undertook to collect from Belt by means of a garnishment addressed to Davis. But instead of having Davis summoned to a superior court, the like court to that in which the judgment in favor of Daniels against Belt was rendered, he had him summoned to the justice court, the same in which the judgment in favor of Belt against Davis was rendered. Thus he planted his garnishment where it could not possibly take root, for a garnishment based on a judgment must be returnable to the court in which the judgment was obtained, or to a like court if the garnishee resides in a different county. Code, §§3536, 3537. Daniels’ judgment against Belt was the basis of the garnishment, and as that judgment was rendered by a superior court, the justice court had no jurisdiction.

2. Nevertheless, Durden, the justice of the peace, assumed jurisdiction, rendered judgment against Davis, the garnishee, collected the money, and paid it over to Daniels. All of which, except receiving the money, was utterly void. As the justice of the peace could not act judicially where he had no jurisdiction, he must be treated as having acted ministerially throughout, and as there was a legal judgment in his court against Davis in favor of Belt, to which he could have applied the money, and which Belt intended to discharge, and thought he was discharging by the payment, the justice should, as a collecting officer, have applied it to that judgment. There was no other judgment against Davis before him, for the pretended judgment in favor of Daniels on the garnishment was an utter nullity. It cannot be allowed for a collecting officer to discharge himself by paying out money upon a void judgment rendered by himself. In this state, justices of the peace are not exclusively judicial officers; they are likewise collecting officers. Durden had legal authority to collect the judgment in favor of Belt' against Davis, and though he effected the collection by means of rendering a pretended judgment on the void garnishment at the instance of Daniels, that made no material difference in the validity of the collection. At all events, Davis could not reclaim the money from Durden after filing an affidavit of illegality to theji. fa. in favor of Belt, on the ground of the payment in question. This affidavit was filed before the rule by Belt against Durden was brought. At the time of the rule, Durden, as a justice of the peace, had collected the money for which Belt’s judgment was rendered against Davis. On that ground, Davis had resisted a levy of Belt’s fi. fa., swearing that he had paid it, and that it was proceeding illegally. These facts rendered Durden prima facie liable on the rule. Iiis sole excuse for not paying the money to Belt, was that he had paid it to Daniels on the judgment in the garnishment proceeding, a proceeding over which he .had no jurisdiction. The defect of jurisdiction was as to the subject matter, and therefore was not cured by the garnishee’s appearance and answer. It was apparent on the face of the proceedings. What may be Durden’s right to take an interest, by way of subrogation, in Daniels’ superior court judgment against Belt, we do not decide, the question not having been made or argned.

3. There was nothing for a jury to try. The court did not err in making the rule absolute.

Judgment affirmed.