Woodruff v. M. G. McDonald Furniture Co.

Simmons, Chief Justice.

The McDonald Furniture Company sold to McMillan certain household furniture, reserving title until payment of the purchase money, which was to be paid in monthly instalments. The contract provided that in case McMillan should fail to pay any of the instalments when due, the furniture company should have the right to take possession of the goods. McMillan paid several instalments, and then absconded, leaving the goods in a house unprotected. The furniture company took possession of the goods and moved them to its place of business. After McMillan absconded, Woodruff sued out an attachment in a magistrate’s court, and caused summons of garnishment to be served upon the furniture company. The furniture company answered that at the time of service it owed the defendant nothing, and that it had not since become indebted to him. The plaintiff in attachment traversed the answer, and alleged that after deducting from the value of the property taken back the amount paid thereon by McMillan, and other credits, including a reasonable compensation for the use of the property, there was a balance of $110 in the hands of the garnishee belonging to the defendant. On the trial of the case before a jury in the justice’s court, there was a verdict for the plaintiff' in attachment against the garnishee for $50. The case was carried by certiorari to the superior court, and a new trial was awarded; to which Woodruff excepted.

1-2. Although upon an adjustment of the equities between McMillan and the furniture company there might be a balance due McMillan, these equities could not be adjusted, nor the balance ascertained and reached, by a. garnishment returnable to a justice’s court. In the contract of sale, as we have seen, title was reserved in the= vendor, and this contract was properly executed and recorded. The property, therefore, was not subject to levy and sale at the instance of creditors of the vendee. Still, if the vendee had an interest in the property it ought to-be subject to his debts; and the question then arises, what remedy ought the creditor to have pursued ? We think the proper course for the creditor would have been to offer to redeem the property. If it was worth more than the debtor still owed upon it, the creditor could offer to pay the balance due; and if this tender was accepted by the vendor, the creditor after paying the balance due could have the property levied on and sold as the debtor’s property. If the vendor refused to-accept the tender or if he and the creditor could not-agree upon the amount due, then in our opinion,the-creditor would have a right to commence equitable proceedings in a court having jurisdiction in equity, against the vendor and the vendee, and thus obtain suitable relief. This could not be done in a justice’s court, because-that court has no equity jurisdiction; but a court of equity could adjust the equities of the parties, and a verdict and decree therein could be so molded as to do-exact justice to all. This was the mode of procedure which this court held to be proper, in the case of Swift v. Lucas, 92 Ga. 796. While that case deals with realty, the same principle is applicable to a case of this kind. Substantially the same rule has been adopted by the legislature in the recent act on this subject (Acts 1894, p. 100), and made applicable to personalty as well as-realty.

3. It follows from what we have said, that the court was right in sustaining the certiorari. Instead of awarding a new trial, however, it should have rendered final judgment in favor of the plaintiff in certiorari, and direction is given accordingly.

Judgment affirmed, with direction.