
    12590.
    Morris Fertilizer Company v. Jackson.
    Decided November 16, 1921.
    Rehearing denied December 30, 1921.
    Complaint; from city court of Atlanta — Judge Reid. May 25, 1921.
    On April 19, 1920, Morris Fertilizer Company sued R. B. Jackson on a promissory note; and summons of garnishment, based on this suit, was served on the Bank of Hapeville. The bill of exceptions of the fertilizer company states that on June 30, 1920, the defendant filed an answer setting -up that he was adjudicated a bankrupt on May 18, 1920, and asking for a stay of proceedings until his discharge in bankruptcy; and that on May 11, 1921, he filed an amendment attaching to his plea a certified copy of the adjudication, his schedule in bankruptcy, and his discharge, showing the plaintiff’s claim properly scheduled, and assets of $88 in cash in the Bank of Hapeville, subject to check. The bank, in its answer to the summons of garnishment, “admitted funds in the sum of $72.67.” This case was tried on an agreed statement of facts, as follows: The facts alleged in plaintiff’s original petition are true. The plaintiff's debt was duly scheduled in the bankruptcy proceeding, and is a provable and dischargeable debt, but no trustee was appointed by the court of bankruptcy and no homestead or exemption was granted, and the bankruptcy court did not take possession of or attach the funds held by the Bank of Hapeville, and the funds are now held by it as stated in the answer to the garnishment. “The plaintiff did not go into the bankruptcy court . . and did not ask for a receiver or appear in any way, and did not prove its claim in the bankruptcy court, and the defendant was duly discharged August 14-, 1920.” The plaintiff "tendered its original note in evidence and asked that a judgment be entered, with the limitation that it be made only out of the garnishment proceedings, or a judgment against the defendant with a stay of execution, for the purpose of entering a judgment against the garnishee, and that the court allow the plaintiff to enter up judgment against the garnishee for the fund in its hands. . . The only objection made in this case to the entering of such judgment was made by the defendant E. B. Jackson.” The judge directed a verdict in favor of the defendant, holding that no judgment could be entered against the defendant for the purpose of entering judgment against the garnishee. Error is assigned on this judgment.
   Luke, J.

The service of a summons of garnishment less than four months before a petition in bankruptcy is filed does not create a lien upon property, money, or effects of the debtor in the hands of the garnishee; aliter, if the summons of garnishment be served more than four months before proceedings in bankruptcy. See Light v. Hunt, 17 Ga. App. 491 (2) (87 S. E. 763), and eases cited.

(a) Upon the agreed statement of facts in this case, it appearing that suit and garnishment proceedings were served on April 19, 1920, that the defendant was adjudicated a bankrupt on May 18, 1920, and was duly discharged in bankruptcy on August 14, 1920, and that the plaintiff was scheduled as a creditor and the money caught by garnishment was listed among the assets of the bankrupt, it was not error for the court to direct a verdict in favor of the defendant, holding that no judgment could be entered against the defendant for the purpose of entering judgment against the garnishee.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.

Cited by counsel for plaintiff:

Coker v. Utter, 152 Ga. (108 S. E. 538); Light v. Hunt, 17 Ga. App. 491; Citizens Nat. Bank v. Dasher, 16 Ga. App. 33; Civil Code (1910), § 5273.

Lovick G. Fortson, for plaintiff. John E. Hudson, for defendant.  