Opinion
24126.
ARGUED JUNE 13, 1967.
DECIDED JUNE 22, 1967.
Injunction. Fulton Superior Court. Before Judge Whitman.
Candler, Cox, McClain Andrews, E. Lewis Hansen, for appellant.
Parks Eisenberg, David S. Eisenberg, Gerald P. Thurmond, for appellee.
Upon proper application to a court of equity a judgment creditor will be enjoined from proceeding to collect by writ of garnishment assets of a deceased judgment debtor during the period granted by law for the executor to marshal the assets and to determine the liabilities of such estate.
ARGUED JUNE 13, 1967 — DECIDED JUNE 22, 1967.
On October 5, 1965, Professional Discount Corporation obtained a judgment against Mollie G. Greenberg in the Civil Court of Fulton County which was recorded on the execution docket of the records of the Clerk of the Superior Court of Fulton County on such date. On January 8, 1966, Mollie Greenberg died, and thereafter on January 21, 1966, the Fulton National Bank of Atlanta qualified in the Court of Ordinary of Fulton County as executor of the estate of the deceased. On February 7, 1966, Professional Discount Corporation gave written notice of and filed its claim, based on the prior judgment against the deceased, with the executor. Prior to the death of Mollie G. Greenberg, on November 15, 1965, Professional Discount Corporation filed an affidavit and bond of garnishment in the Civil Court of Fulton County and on February 18, 1966, a summons of garnishment was served on Provident Life Accident Insurance Company. The garnishee answered denying any indebtedness to Mollie G. Greenberg but stated in its answer that it held the proceeds of certain life insurance policies which were payable to the estate of Mollie G. Greenberg. By agreement these funds were paid into the registry of the court to await a determination of the present action which originated as a suit in equity by the executor of the estate of Mollie G. Greenberg to enjoin Professional Discount Corporation from attempting to collect the proceeds of such insurance policies thereby requiring it to take its place along with other creditors of the estate and to receive its share of the estate in accordance with the distribution required by Code Ann. § 113-1508.
The trial court, after a temporary restraining order had issued, heard the case upon a stipulation of fact and issued a permanent injunction upon a motion for summary judgment by Fulton National Bank of Atlanta. Professional Discount Corporation was enjoined from prosecuting any garnishment in which action it was seeking to have paid over to it any sums of money or property which are or may be a part of the estate of Mollie G. Greenberg. In this same judgment a motion for summary judgment filed by Professional Discount Corporation was overruled. The appeal is from this judgment adverse to Professional Discount Corporation.
1. The appellant relies upon the cases of Ingram v. Hurt, 10 Ga. 568; and Brooks v. Rooney, 11 Ga. 425 ( 56 AD 430), to support its contention that it, as a judgment creditor, is permitted to pursue the collection of its judgment after the death of Mollie G. Greenberg and therefore to obtain preference over other creditors of the estate by its perseverance in locating assets of the estate and having fi. fas. or garnishments issued.
In both of the above cited cases judgment creditors had property levied upon and sold by the sheriff without any effort being made by the representatives of the estates to prevent such sales, and the court held in both cases that the purchaser at the judicial sales obtained good title as against the representative of the estates. See Holt v. Laurens, 193 Ga. 136 ( 17 S.E.2d 571).
In the case sub judice the executor sought the aid of equity to prevent the judgment creditor from interfering with the proper administration of the estate, and in effect to require the judgment creditor to take its proper place with other creditors of the estate of the deceased.
Code Ann. § 113-1508 provides the order of priority of claims against an estate, and to permit a judgment creditor to proceed to collect its judgment by garnishment, during the time permitted by law for the executor to marshal the assets of the estate and determine the claims against the estate, would be to vitiate the priority set forth in such Code section. The trial court did not err in granting the injunction upon motion of the executor and in denying the defendant's motion for summary judgment except as to such extent as will be dealt with in the next division of this opinion. See Georgia Money Corp. v. Rissman, 220 Ga. 476 ( 139 S.E.2d 486).
2. Prior to the death of Mollie G. Greenberg a summons of garnishment was served upon and answered by the First National Bank of Atlanta. The garnishee tendered into court a sum of money on deposit with it at the time it filed such answer. Assuming, as contended by the appellant, that these funds were still on deposit with the court at the time the injunction was rendered and were a part of the estate of the deceased, where the time for filing claims in garnishment cases ( Code Ann. § 46-408) had expired months before the petition for injunction was filed and no claim was filed the right of the judgment creditor to such funds cannot be disputed and the judgment of the trial court is affirmed with direction that it be amended so as to expressly exclude such funds from the scope of the injunction.
Judgment affirmed. All the Justices concur.