Dover v. Young
Dover v. Young
Opinion of the Court
This was a garnishment proceeding which was submitted to the trial judge upon an agreed statement of facts. It appears that the plaintiff obtained a common-law judgment based on a note containing a waiver of homestead, and filed affidavit and bond for garnishment and had summons of garnishment served upon the garnishee. More than four months thereafter the defendant was adjudicated a bankrupt. The plaintiff proved his claim in the bankrupt court, and received payment in full of the principal and interest up to the date of the adjudication in bankruptcy. Prior to the adjudication in bankruptcy the garnishee answered not indebted, and his answer was traversed. It was agreed on the trial that the garnishee had in his hands sufficient funds, subject to the garnishment, to pay the balance due the plaintiff on his execution. The defendant was never discharged in bankruptcy, but applied for and had set apart and paid to him $1600 for a homestead. The trial judge entered judgment against the garnishee for the balance due on the plaintiff’s claim, and to that judgment exception is taken. The garnishee contends that the plaintiff waived his lien under the garnishment proceeding by proving his claim in the bankrupt court and receiving payment of the principal of the debt and interest to the date of the adjudication; and that the plaintiff had received satisfaction of his claim from the bankrupt court, and his cause of action was therefore at an end.
1. “There is no principle upon which it could be said that by proof of his claim in bankruptcy a lien creditor would waive or be
2. “A plaintiff may pursue any number of consistent concurrent remedies against different persons until he obtains a satisfaction from some of them.” Civil Code (1910) § 5522; Board of Education of Glynn County v. Day, 128 Ga. 156 (57 S. E. 359); Hulsey v. Forrester, 36 Ga. App. 729 (137 S. E. 904). While it is thus the general rule that when a plaintiff pursuing consistent concurrent remedies has obtained full satisfaction from one source, his cause of action ends, and he will not be permitted to assert it further (McLendon v. Finch, 2 Ga. App. 421 (3), 427 (58 S. E. 690), in the instant case it appears from the agreed statement of facts that the amount received by the plaintiff from the bankrupt court was less than full satisfaction of his claim. Since, so far as appears from the record, there may have been other claims before the bankrupt court of equal or superior dignity to that of the' plaintiff, and it can not, therefore, be said as a matter of law that the plaintiff was entitled to payment of his claim in full from the funds administered by the trustee in bankruptcy, it can not be said that the amount received was accepted by him as in full satisfaction of the claim. Accordingly, the right of the plaintiff to pursue the consistent remedy under the garnishment proceeding was not barred by full satisfaction of the claim from another source.
3. Under the foregoing rulings, the trial court did not err in entering judgment for the plaintiff.
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.