The Georgia record. (Atlanta, GA.) 1899-19??, July 01, 1899, Image 1
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.)
NO. 1.