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About The Georgia record. (Atlanta, GA.) 1899-19?? | View Entire Issue (July 1, 1899)
The Georgia Record VOL I. “Supplementary Process.” To the Bar and People of Geor gia: In 1892 I prepared a series of articles on legal topics, and intended then to publish th'ern, but circum stances did not at that time favor me for such publication. In November, 1896, I had the ar ticles printed in a booklet. The book let was issued, and copies sent to mem bers of the bar and many of the peo ple. My suggestions have met with the approval of many lawyers and bus iness men, manufacturers, merchants, and other lines of business. In 1897 I was requested by a mem ber of the legislature, Mr. B. H. Hill, Jr., of Troup, topreparea bill in accordance with my suggestions on the topic of “Supplementary Process.” In compliance with the request, I prepar ed a bill and presented it to Mr. Hill, but the session of the legislature had then progressed too near the time for adjournment to allow’ of the passage of the bill,so it was notintroduced.and he returned it to me, subject to future consideration. I now submit to the bar and people my original sugges tions of 1892—1896, and copy of the bill which I prepared. I respectfully request expressions concerning the matter, of approval, or amendment. The purpose is to pre sent it before the next legislature, with the view of asking that it be en acted as a law. I respectfully submit these sugges tions, in the belief that a law of this sort or character should be enacted, nfor the benefit of all the business peo ple of Georgia. It will be of great advantage to the commercial interests and general business of our state. Th’e remarks in my booklet, on this particular topic, I reprint here, so that those who did not see them then, may now have opportunity to see the full presentation of the subject, as follows: SUPPLEMENTARY PROCESS. As a third division of these sug gestions, I would suggest proceed ings supplementary to judgment or ex ecution against property, to compel an examination of the judgment debtor, or of his debtor or bailee. This would provide for a remedy in addition to our present process of garnishment. We all know how slow, and very often how futile, is the law of garnishment. We may make a leap in the dark, hoping to strike something that may be bene ficial, but for this we must take the chance of a garnishee giving a truth ful and honest answer. Os course the presumption may be in favor of his giving a true and honest answer, but who of us does not know in practice the error of such presump tion? In these degenerate days of peculiar ways we often find that a de linquent debtor and a garnishee com bine and contrive for the defeat of a garnishment made upon a just debt. The answer may be delayed till second term, or till judgment on the debtor, and then may be untrue, either by de sign, or by carelessness, or negligence, but at any rate, may be incorrect. The movant in the garnishment then must present his traverse to such answer, which must join issue with the an swer, then that must form a new issue, to be postponed till another term, by which time the delinquent debtor and the garnishee may both be totally insolvent, and by design, and by devices in the law, they manage to escape payment of any sum, and so thev may defeat an honest creditor. But suppose that ij should be an honest answer, and thq creditor should not have any necessity for traverse, si ill the honest creditor is delayed far be yond the time in which justice should prevail. He must wait until he can get judgment on an obstinate and liti gious debtor. Variety of pleas may be set up to hinder a judgment being rendered when it is legally due, con tinuances may be set up from time to time for purpose of delay, death may come to the defendant or to the gar nishee, and their administrators claim a year of exemption before suit can proceed, then a term or two. may elapse before he can be made a party to the case. ATLANTA, GA.. SATURDAY, JULY I. 1899. In such time the dockets become crowded with other cases, and thus we have the “law’s delay,” and the defeat of justice. Let us have the additional remedy by supplementary proceedings. I would suggest that such proceeding may be had by enacting a law to the effect that upon a proper affi davit by a suitor or plaintiff, or judgment or execution creditor, or the agent or attorney of such person, that he has good reason to believe, and does verily believe, that his debtor has effects or property which he covers or conceals from his creditors, and hin ders the operation of the final process or execution, or has secretly or fraud ulently transferred his property or effects of any kind or character, that then the judge or justice shall issue an order to require such derelict debtor to appear before him, at a time and place to be designated, and be exam ined with regard to his means and property, and as to his dealings and transactiaus with other persons. Upon failure to comply with the order, there may be an attachment against such person, and he may be required to give a good bond for his compliance with the order of the court, or be fined for his disobedience, and the fine be collectable from such person or his se curity. As a foundation, such order should issue against a judgment debtor before an execution shall have issued, or against a judgment debtor after the the issuing and before the return of an execution, or after issuing and be fore return of an execution, an order may issue against any other person who may not be a party to such execution, but who may have received, or who may have pos sesion of, any property of the judg ment debtor, or any person who may be indebted to him. Some such rem edy seems to be necessary in the juris prudence of our state, in these times when our personal and commercial in terests are so extensive and important, and daily growing muter ami mure important. This seems to be necessa ry so as to be appropriate and applica ble to any case of creditor or debtor, and in any court, as a general law, having uniform operation throughout the state. The law of 1880, called the Insolvent Traders’ Act,’does not seem to be the proper law for such matters, as it is only operated by courts of equity, and operates only upon a cer certain class of persons, engaged in certain lines of trade, or for manufac turers whose business may reach or go over a certain amount - It does not meet the demands of all classes of persons, as creditors, unless the debtor be of a certain class of trade, doing a business of manufacturing to a certain large amount, to-wit: Five thousand dollars per annum. A creditor having a demand on a debtor in any other line of business, or against a manu facturer whose trade is less than five thousand dollars per annum has no participation in the operations of that law. It seems that the Act of 1880 is also obnoxious to the idea of class leg islation, which is inhibited by the Constitution. Let us enact a law for supplement ary proceedings which may cover all eases in all courts, which will carry out the State Constitution as expressed in 5023 of the Code, 1882, viz: “The General Assembly shall have the power to provide for the punishment of fraud; and shall provide, by law, for reaching property of the debtor concealed from the creditor,” and like wise as in Section 1915 of Code, “the rights of creditors should be favored by the Courts, and every remedy and facility afforded them to detect,defeat, and annul any effort to defraud them of their just rights." The Bill, as I prepared it, is as follows: AN ACT to allow and authorize special supplementary proceedings in the several courts of this state, for creditors as suitors and as plaintiffs in judgments and executions, as addi tional process and remedy in civil proceedings, in cases where suit is pending or in which judgment is ob tained or execution is issued, and to ba co-operative with the law of section 2687 of the code, and to carry into effect and operation the paragraph 6, of section 2, of article 1, of the con stitution of 1877. Section I—Be it enacted by the general assembly of Georgia, and it is hereby enacted by the authority of the same, that from and after the passage and approval of this Act, it shall and may be lawful for any creditor as a suitor, as plaintiffin any suit or cause of action arising on or out of contract, in any of the courts of this state, ex- cepting in the supreme court, to have and to institute a» special proceeding as supplementary process, as an addi tional remedy to Fuch as is now allow ed by law, and su»h special proceeding as supplementary process may be instituted an I but in operation by the creditor or Jplaintiff in person, or by an ag »t, or attorney in fact, or attorney at law, acting for such creditor, plaintiff in suit on contract, f >r the enforcement of the laws for col’ections of debts or obligations, iAuJZ.r-i.it is pending on debts or obiq, 5 arising by con tract, or in p’Zgaents rendered, or executions issued in cases either of contracts or of 'sorts or damages, so that such suitor a? plaintiff or as judg ment or execution creditor, or the agent, or attorney .in -fact, or attorney at-law, acting for (uch suitor or plain tiff in suit on a < '( tract, or for the plaintiff in judgip. li t or execution in any case, may [ ate such special proceeding as atljqdemeiitary process by making a petition addressed to the judge or justice of the court in which suit is pending, or.in which judgment is rendered, or fr<>m which execution issued, which peti’ion shall be verifi ed by the affidavit of the suitor or plaintiff, in suit or judgment or exe cution, or by the affidavit of the agent, or attorney-in-faet; or attorney at-law, in similar manner or now required in petitions for equitable proceedings, or as in cases of attachment against fraudulent debtor!-, in which petition the applicant in such special proceed ing of supplementary process, it may be stated or alleged that such suitor or plaintiff in suit, judgment, or execu tion, as the case may be, or his or her agent, or attorney in fact, or at law, has reason to belifve, and does verily believe, that the debtor or defendant in suit, judgment or execution, has money, or proper'y, or effects, which the said debtor or' defendant covers, hides,secretes, am j > < ? oucea l s » and keeps out Of‘fle<r'KTm'Tt’i?s - 'from In'S O'r i.ef creditors, and hinders and delays the progress and settlement of mesne aid final process and execution of the law, or that such'debtor or defendant has secretly or fraudulently sent, or hid away, or deposited, or assigned, or transferred, his or her money, or his or her property, or effects, of any kind or character whatever, and omits and refuses to allow such mon ey, or property, or effects, to be in view, and reach, and accessible and subject to the common and ordinary process of law, for pay ment of debts or obligations under the law. Section 2—When such petition, duly verified, shall be presented to the judge or justice of the proper court, it shall be the duty of such judge or justice to issue instauter a mandatory and peremptory order or summons to such derelict and delin quent debtor or defendant in the suit, judgment, or execution, to appear be fore the said judge or justice, as a judicial officer, at a time and place to be designated in the order or sum mons, to be as early and speedily and summarily as may be conveniently and fairly done, and then and there at the time and place designated to be investigated and examined, and it shall be the duty, and in the lawful power and authority, of sueh judge or justice, to examine, and to allow and cause to be examined, such debtor or defendant in suit, judgment, or execution, as thoroughly and care fully as cau be accomplished, with re gard to his or her means and money, and property and effects of any and •very sort or character, and as to his or her dealings or transactions with othei - person, or persons, and to be fully and thoroughly examined by the judge or justice, or by the agent, or attorney of the petitioner in such spec ial proceeding, and the judge or jus tice may ask, or permit to be asked, leading questions and as direct as need to be, in and about any aud all such matters as may be relevant or perti nent to the full and complete disclos ure and discovery of his or her receiv ing or disposing of any money, or property, or effects, or any notes,bills, accounts, drafts, checks, mortgages, deeds, or bonds of any kind, in deal ings or transactions with any other person or persons, or vzith any firm or partnership, or joint stock company, or association, or bank, or any corporation Os any kind or character, whether domestic or foreign company, association, syn dicate, or corporation, and this act shall apply to all such persons, firms, companies, or private associations or syndicates, or private corporations, when they may be defendants in suits ex-contractu, or in any judgments or executions from cases either ex-con tractu or ex-delicto, and any such of them may likewise be ordered to ap pear before the judge or justice of the court to be examined and to answer as herein stipulated or specified for other persons. Section 3—When the petition shall be so made, and presented, on the af fidavit of such creditor or plaintiff as applicant, or agent or attorney in fact, or at law, it shall be the duty of the judge or justice to have a copy of the pe tition and order or summons served on the party, or defendant, or persen to be examined, and any firm or partnership may be served by serving any member or co-partner of such firm or partner ship, and any corporation or incorpor ated company,syndicate or association may be served by giving copy of the petition and order or summons to any officer or agent of such corporation or incorporated company, syndicate, or association. Service may be made by the sheriff or any- deputy sheriff, or the city court or county court bailiff, of the county in which the special proceeding may be instituted, when the case is in the superior court or county court, aud by a lawful consta ble of the militia district in which the special proceeding may be instituted, when the case is in the justice’s court, or the court of a commissioned notary public as ex-officio justice of the peace, or service may be made by some pri vate person, and in all cases the offi cial return of the sheriff or his deputy, or of the constable, or the affidavit of such private person, shall be sufficient prima facie evidence that the same was duly served. Section 4—ln all such special pro ceedings as herein prescribed, the judge or justice shall have authority and power to require and compel the debtor or defendant in suit, or judg ment, or execution, or other party or person interested in such proceedings to ptbdftCe at ' the hearftig Ao.’, exam ination any books, pamphlets, writ ings, bills, notes, accounts, contracts, deeds, bonds, mortgages, bills of sale, checks, drafts, receipts, stubs, pass books, policies of insurance, cer tificates of deposit, assignments, statements, rolls, schedules, pay-rolls, drawings, plans, specifications, time books, cash books, petitions, or any and all other documents or instru ments of any kind or character, by whatever name they may be called, ! designated or known commonly or technically, which may be in the possession, power, custody, or control of such debtor or defendant, either in person, or by agent or attorney, or by any other person acting or holding for such party or defendant, or firm, or company, or association, or cor poration, to be examined, which may contain or show evidence pertinent to the cause, provided, that such notice i to produce shall be in writing, signed j by the person or party giving the no- I tice, or by his agent or attorney, and to be served on the debtor party, or person, or firm, or company, or asso ciation, or corporation defendant in suit, or judgment, or execution, at least one day before the time set for the examination in such cause. The service of such notice may be made in the same way as specified for service of the petition and order, or summons, and similar return or affidavit shall be evidence of the service, or by ac knowledgement of service, or by a proper response to such notice. Section s—ln such cause of special proceeding for examination the judge, or clerk, or justice may issue sub pceuas for witnesses, in the usual way as now provided by law, for com pelling the attendance of witnesses in court, to attend at such hearing and examination, aud witnesses shall I be subject to the same rules aud pen alties as are now provided by law for witnesses in any e®se, and the witness fees for attendance shall be the same as in other cases or proceedings at law, and all female witnesses shall be subject to subpeena, and may be re quired to attend in person at such hearing and examination, under the same rules and regulations and penal ties as any other persons subpoenaed as witnesses to attend in court. Section 6—Subpeena duces tecum may be issued in like manner by the judge, or clerk, or justice, as in eases now provided for by law, for any per son who is not a party in such cause, which subpoena duces tecum shall be served in like manner as herein before provided for service of the petition aud order or summons, and shall be served at least one day before the time designated for hearing, when the witness is within the county where snch special proceedings is in stituted, and three days before, wnen such witness is without the county. Section 7 —The penalty for failure to obey subpoena duces tecum shall be the same as now provided by law in such cases, with the same method or form for relief or discharge, except ing that under this act the judge or justice may issue attachment for such defaulting or recusant person, or par ty, or agent, and such attachment may be made returnable before the judge or justice instanter, or at any time later, not exceeding five days after the service of subpoena duces tecum, cr after attachment, when such delivery shall be made of the affidavit of such person that such books, or papers, or documents as called for are not in his or her, or in the firm’s, or company’s, or the corporation’s, power, possession, custody, or control, and that it or they was or were not so in possession, pow er, custody, or control at the' time of . the service. Section B—-When the time arrives, as designated in the order or summons for such hearing and examination, it shall be the duty of the judge or justice to preside over such hearing and examination, and to hear all com petent testimony, under and according to all legal rules of taking and admit ting or rejecting testimony, and make and allow a thorough investigation of the ‘status of such person, party de fendant, to be examined, with refer ence and regard to his or her, or their custody, possession, control or ownership of means, or money, or pioperty, or effects of any kind or character whatsoever, to ascertain the condition, situation, or location f the same, the amount of money in his, or her, or their possession, power, cus tody, control, and in whose keeping, possession, or control the same may be, and for whom such money, prop erty or efiects is or are held, and to make <nute and searching , mill .Aarlli,. . ■ a- ... the pecuniary and property condition of snch person or party defendant un der examination. Section 9 —Whenever any person or party defendant, firm, or company, or corporation, as defendant in suit, or judgment, or execution, shall be order ed or summoned to appear in sueh special proceeding for examination be fore any judge or justice, or notary public as ex-officio justice, and such person or party defendant, or firm, or company, or corporation, so ordered or summoned, shall refuse to obey sueh order or summons, or refuse to submit to examination, the judge or justice, or notary public as ex-officio justice, shall have the power and au thority to issue attachment against such recusant person or party, and may direct and cause him, or her, or them, or the officers and agents, or attorney, of a corporation, to be ap prehended by an officer of the law, aud to be brought before •Aich judge or justice immediately, or at such time as may be directed, to show cause why such person or party, or corporation officer, agent or attorney should not be fined or im prisoned, as for contempt, and such judge or justice shall have authority •nd power, and it shall be his duty to summarily deal -with and punish such contempt by proper aud appropriate fine cr imprisonment in jail until such recusant person or party may submit to such examination. Section 10—When such investiga tion aud examination in such special proceedings shall be concluded and finished, aud it shall result in ascer taining or discovering or finding any money or property or belong ing to such person or party defendant examined, it shall be the duty of the judge or justice to make and pass an order, directing the person or party defendant examined, or other person, or bank, or company, or corporation holding such money, or property, or effects, to deliver and pay the money into the court, or to hold it sub ject to the further order of the judge or justice of the court, and to be applied as may be appropriate and just, either then or later, as the judge or justice may order or direct, and if such examination under such special proceeding shall result in the discovery or disclosing of any property or paper's or effects of such person or party de fendant examined, the judge or jus tice shall order such party defendant, or other person having possession of, or holding such property, or to deliver it or them to the sheriff’, or a receiver, or to the constable, to be held or dis posed of according to the order of th® (Continued on Second Page.) 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