Bates & Co. v. Forsyth

Jackson, Justice. We are all of opinion that the court erred in striking the entire traverse of the plaintiffs. It appears to have been two-fold in its specifications denying the truth of the gar [235] nishee’s answer. Eirst, it alleged indebtedness of garnishee to defendant to the amount of five hundred dollars. Upon this allegation it is clear that the plaintiff had the right to go to the jury and prove this indebtedness, if he could. Secondly, it was alleged in amendments to the traverse that Harkins, the defendant, had a claim on Mitchell arising out of a transfer which Mitchell made of certain y?, fas. from Gordon superior court in the hands of Warren Akin for collection — Mitchell representing that there was a fund in the hands of the sheriff to pay the fi. fas. This transfer was made without recourse on Mitchell to Colclough, Harkins & Glover, who, under instructions from Mitchell, sued Akin, who had collected and appropriated the money for fees due him from Mitchell, and they failed to recover. Before service of garnishment on .Mitchell and on the dissolution of that firm they assigned their claim on Mitchell to Harkins. And it is this claim which makes the second, traverse of indebtedness. On demurrer, the superior court held that this claim is not assignable and that it is barred by the statute of limitations. My brethren think that- the court erred in so holding, on the ground that Mitchell having instructed Colclough, Harkins & Glover to sue Akin, is estopped to set up the statute of limitations though the transfer of the executions and the representations of Mitchell were made in April, 1871, and the garnishment served in June, 1875, and that the real claim was assignable, being a chose in action arising ex contractu. They hold that Akin paid a debt which Mitchell owed him out of this fund which was due on the fi. fas. he transferred, and that Mitchell ’ thus received through Akin, Colclough, Harkins & Glover’s money, and-an action for money had and received lies for it, and was assigned legally, so far as the traverse sets it out; and that thus Mitchell owes Harkins the money. I rather agree with the court below myself. I think that no action at all could'be brought on the transfer, because its express terms are “ without any liability whatever ” [236] on the part of Mitchell; and that the only right of action which could arise must spring from the false representations of Mitchell in respect to the money which was in the sheriff’s hands to pay the fi- fas. — that is, an action of deceit, which being a tort is not assignable, the assignability of choses in action being confined to such as arise out of contract. Code, §§2958, 2244. Moreover, it appears to me that the right of action accrued when the party discovered the fraud and deceit, and when that time was is nowhere alleged. I am not prepared to say, therefore, that, taking the case made by the pleader most strongly against him, the plaintiffs are not barred. Besides, we all think, I believe, that such an assignment ought to be in writing. It is not alleged that it is assigned in writing ; but as there was no special demurrer, ou a general demurrer the traverse on this ground perhaps ought not to have been dismissed. Of course this ruling will send the whole traverse to the jury, and the case must be passed npon by them on its merits. When the whole of the facts are brought out, clearer light may shine npon the case, and the court below and this court see the law of it more satisfactorily on the real point, the amended traverse; which was, we learn outside of the record, the point really ruled below on the demurrer. Judgment reversed.