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Keller vs. Mayer, Straus & Baum.

4. Husband and wife are not permitted by the law to cover with her name

his business or property, in order to protect the same against his creditors. In a contest between the wife and the creditors, any fraud or false coloring which may have been practiced or attempted, may be inquired into, and if

the husband be the real owner, the creditors will prevail. 5. The husband may be his wife's agent or employee in the management of

her separate estate; and if she becomes indebted to him for services, by contract, express or implied, she is subject to garnishment at the instance of his creditors.

Husband and wife. Debtor and creditor. Evidence. Principal and agent. Garnishment. Before Judge JAMES Johnson. Talbot Superior Court. March Term, 1875.

Reported in the opinion.

Willis & WILLIS, for plaintiff in error.

E. H. WORRILL, for defendants.

BLECKLEY, Judge.

Creditors of the husband levied upon goods in a store carried on by him as agent for his wife. Their judgment was rendered in 1866. The business was opened upon money borrowed by the wife from her uncle, in 1869, and had increased from a very small beginning to some thousands of dollars.

a The wife gave some attention to the business, hired and paid clerks, received the money at the close of each day, etc. The husband was an excellent business man, and, after reforming intemperate habits, under which he labored at first, gave his whole time and attention to it, up to the time of the levy in 1873, receiving for his services nothing but support and necessary expenses. There does not appear to have been any express contract on the subject of his compensation. He held himself out as agent for his wife, using in the business his name as such agent, and she claimed everything; he claimed nothing.

On the levy of the plaintiff's execution upon certain articles of the stock she interposed her claim, and the jury, on the trial of the claim case, found the property subject.

Keller vs. Mayer, Straus & Baum.

1. The plaintiffs sought to show that the property in the goods levied upon was in the husband, their debtor; and, as evidence on that subject, they endeavored to establish the fact that the goods were the proceeds of his labor. Upon the offer of evidence to prove the value of his services in the business, the claimant objected, and the evidence was admitted. It was properly admitted on the ground that the value of labor has some tendency to show whether what is alleged to be its product, was really so or not. On the plaintiffs' theory, the services and the goods stood to each other in the relation of cause and effect, and the value of the services certainly went to illustrate the adequacy of the alleged cause.

2. It followed as a logical sequence that the claimant had a right, on her theory, to prove the yearly cost of her husband's support. She endeavored to account for the rendition of his services by showing that he was in her employment, and that she supported him and paid his necessary expenses. What was the cost of his support as compared with the value of his services, went to illustrate the truthfulness or non-truthfulness of her position. The court erred in rejecting the evidence offered by the claimant on that subject; more especially as evidence had been admitted, at the plaintiffs instance, of the value of his services. It was services on one side and support on the other, and how the two were related in value was a relevant question.

3. The court charged the jury that if a married woman allow her husband to use, in buying and selling goods as a merchant, money belonging to her separate estate, the goods became his property, and are subject to his debts; also, that if a man, acting as agent of his wife, by his skill and labor make property, it does not belong to the wife; that property made by the husband, by his labor and the use of money belonging to the wife, is, as to the surplus over and above her capital and interest thereon, his property, and subject to his debts. In thus charging, in view of the facts of this case, the court erred. If the husband, in buying and selling, use the wife's money for her, in her business, the goods are hers

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Keller, vs. Meyer, Straus & Baum.

and not his, and are not subject to his debts. If he be truly her agent he is not his own principal, and the fruits of his agency belong to her. If, on the contrary, the truth of the case be that the husband is merely using the wife's money with her consent, in his own business, she is his creditor for the principal advanced, with interest, and the stock and all accumulations are his, and the rights of his creditors attach. The principle announced in the third head-note to this opinion is deemed by the whole court to be sound law.

4. In refusing to charge, as requested, that if the property levied upon has not belonged to the defendant in fi. fa. since the judgment was rendered against him, it is not subject, the court below committed palpable error. A judgment binds only the property of the defendant, owned by him at or after the rendition of the judgment. The true inquiry in the present case was as to the title to the property levied upon, which title was, according to the evidence, in the defendant or in the claimant. The real problem was, which of the two was the true owner. There was no pretence that it belonged to any third person. Husband and wife are not permitted to cover with her name his business or property, in order to protect it against his creditors. Any fraud or false coloring may be exposed, and the very truth of the matter established. If the property under seizure be that of the husband, the creditors will prevail; but if it be that of the wife, who is not their debtor, nor bound to pay her husband's debts, they ought not to prevail.

5. The legal theory upon which this case seems to have been tried, we deem erroneous. In Georgia, as the law now stands, the wife is a feme sole in respect to her separate property, and the husband may become her agent or employee in its management. She needs no trustee to hold title or make contracts. The legal, as well as the equitable title (where the estate does not come to her united with a trust,) is in her, and she can bind it by her contracts. Even her husband, acting fairly and bona fide, may become her creditor for services, by contract expressed or implied, and if he be such cred

VOL. LV. 27

Fontaine vs, Bergen.

itor, his creditors have their remedy against her by garnishment. The law will keep a close watch over the married pair to prevent frauds, but will not interdict fair dealing between them, except in the instances expressly prohibited.

The principles ruled will sufficiently dispose of exceptions in the record not specially noticed.

Judgment reversed.

T. S. FONTAINE, plaintiff in error, vs. M. T. BERGEN, defend

ant in error.

55 410 54 585 61 210 68 457 68 812

55 410 100 427

1. There is no provision of law for a proceeding in a justice's court to set

aside its own judgment and grant a new trial. 2. If a void judgment be rendered by a justice's court, although that court

has no power to set it aside, it, as well as all other courts, may disregard it,

and treat it as a nullity whenever and wherever it comes in question. 3. Under the act of 1873, (Code, section 4161,) final judgment may be ren

dered in a justice's court against a garnishee who fails to answer within ten days after service, as soon after default as there shall be a judgment against the defendant upon which to found it. This act changes the rule

laid down in 44 Georgia Reports, 188. 4. Where the superior court has dismissed an appeal from a justice's court,

and it does not appear from the record that the amount involved was over $50 oo, the supreme court cannot reverse the judgement,

Justice Courts. Judgments. New trial. Garnishment. Appeal. Before Judge JAMES JOHNSON. Muscogee Superior Court. November Term, 1874.

On October 30th, 1873, Bergen brought suit by attachment against one Enoch Dudley in the justice court of the six hundred and sixty-eighth district, returnable on the 19th of the following month. On November 3d, process of garnishment was served upon Fontaine requiring him to answer on the 13th of the same month. On the 19th, judgment was rendered against said garnishee as in default. On the 28th, he

, moved to set aside said judgment on the following grounds, to-wit:

Fontaine vs. Bergen.

1st. Because he owed said defendant nothing. That on the 13th of November he went twice to the office of the justice of the peace before whom said process of garnishment was returnable, for the purpose of answering, but that officer was not there; that he was, at the time of making the motion, ready and willing tu answer.

20. Because the notice served upon him on November 3d, requiring him to answer on the 13th, was not such as was required by law.

31. Because the time at which he was required to answer was not on the regular trial day for holding the court in said cause.

4th. Because the execution against Enoch Dudley, defendant, was void, as neither the attachment nor the summons on attachment, bears date twenty days before the day of trial.

5th. Because the 19th of November was the day set for the trial of the case, and the judgment rendered on that day was void as rendered at the first term of the court.

The motion was overruled, and Fontaine appealed to the superior court. In this tribunal the appeal was dismissed, for what cause does not appear, and Fontaine excepted.

The record in the supreme court fails either to disclose what amount was claimed by the plaintiff, or for what amount judgment was rendered either against the defendant or the garnishee.

J. M. RUSSELL, for plaintiff in error.

J. M. MCNEIL; B. A. THORNTON, for defendant.

BLECKLEY, Judge.

The head-notes set forth the opinion of the court on all the points decided. Upon the first of these, see Doughty, Pearson & Company vs. Walker, 54 Georgia Reports, 595; The Dalton City Company vs. Haddock, Ibid., 584.

Judgment affirmed.

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