Tim & Co. v. Franklin

Bleckley, Chief Justice. 1. As a general rule, creditors cannot reach by garnishment any assets which the debtor himself could not recover from the garnishee. Bates v. Forsyth, 69 Ga. 365. Here the policy of insurance was issued to Cohen. Franklin was no party to it. The original undertaking of the company was to pay to Cohen, if a loss should occur. The presumption is that the premiums were paid by Cohen. The traverse of the company’s answer suggests nothing to the contrary. It alleges that the policy covered goods belonging to Franklin, and was issued to Cohen to defraud Franklin’s creditors, but does not disclose who were the parties to the fraud. It does not say that the company was one of these, or that it had notice of any fraud as between Franklin and Cohen. It does not set out any facts which would constitute fraud, and upon which the company could join issue intelligently and with a knowledge of what had to be proved or disproved. No [96] fraudulent agreement, contract or contrivance is set out. Nothing is alleged besides the ownership of the goods by Franklin, except the motive or object of issuing the policy to Cohen. In legal effect it would not be a fraud upon anybody .but the insurance company for Cohen to take a policy at his own expense upon Franklin’s goods, and it would be no fraud upon the company for him to do so, unless he represented the goods as his own in his application for the insurance. 2. But if the traverse were full and definite enough to tender an issue of fraud, Cohen, being the party to whom the insurance company is bound by its contract in the policy, would be a necessary party to any litigation seeking to establish an adverse interest in Franklin or his creditors. It is said that he became a party to the garnishment proceeding by becoming surety on the bond of Franklin dissolving the garnishment. ¥e think otherwise. Ilis suretyship did not connect him with the case in any relation but that of surety, or for any purpose but to render him responsible for the amount of the fund, should it be recovered as the property 'of Franklin, in litigation carried on between Franklin and his creditors in this contest. A mere surety in such a bond has no right or power to conduct or control the litigation, but must abide passively by what is done by others and the results thereof. That he is not a party to the case in the court below, is manifest because, if he were so, he would be a necessary party to this writ of error and would have to be served with the bill of exceptions. lie was not so served. For us to recognize him as a party in the court below, would involve, by the logic of practice in this court, that we should pronounce a judgment dismissing the writ of •error for want of service upon him of the bill of exceptions. 3. We are not sure that this ease has not been brought [97] here prematurely, for the reason that the garnishment is still pending in the court below. Perhaps there is a distinction between cutting the plaintiff off in his appointed remedies for prosecuting the case, and forcing upon him defensive pleadings in behalf of the garnishee. That rulings against the plaintiff in respect to obstructions put in his way by the garnishee are not final judgments, and therefore not cause for writ of error, we have just decided in Moore v. Hill. At present we are doubtful whether the like reason applies in its full force where the plaintiff’is hindered from having a jury trial upon a traverse which he has tendered; and because of this doubt we forbear to dismiss this writ of error. Judgment affirmed.