Jones v. Lowery Banking Co.

HARALSON, J. There is no direct proof that what purports to be the firm of Evitt & Co., whose account had been assigned by defendants, Wiley & Green, to claimants, consisted of R. P. Evitt alone; but he was garnished as the debtor to defendants in attachment, and answered as such, and plaintiff treating him as Evitt & Co., tried this cause with the claimants, asserting his rights to the fund in his hands by virtue of the writ of garnishment. So, whether the account was really against Evitt & Co. or R. P. Evitt, is a matter of which, after this, plaintiff can not complain. The paper offered in evidence tends to show that, prior to the garnishment process against Evitt, the defendants in attachment had transferred the account of Evitt and the debt due by him thereon to the claimants, as collateral security for a debt defendants owed them. It is true, that non-negotiable dioses in action, transferred, as collateral security to a debt, in the hands of the assignee or pledgee, are always open to defenses existing previous to notice of the assignment or transfer. Code, § 1765. But where there are no- defenses of this character to be adjudicated, and a claim is interposed in a garnishment proceeding under the statute, the simple issue is, whether the claimant had a transfer of the demand, which is superior to the garnishing creditor, de [256] rived from his process of garnishment. — Colebrook on Col. Secs., § 422; Jones on Pledges, § 134; Winslow v. Bracken, 57 Ala. 368; Security Loan Asso. v. Weems, 69 Ala. 584-590. It is not disputed that the assignment by the defendants in attachment of the debt which is garnished was as collateral security to a debt which they owed the claimants at the time, nor is it disputed that this assignment was at date prior to the date of the- garnishment process. The case is not embarrassed by any intervening equities or defenses between the defendants and the garnishee. The latter admits the debt to the former. The only issue submitted to the court below to try, on evidence that was not conflicting, was, which of them, as between the plaintiff and the claimant, showed the superior right to the debt in the hands of the garnishee. The plaintiff rested on his garnishment process alone for any right he had or could claim to the debt, and the claimants, on the fact that, prior to the garnishment, the debt has been transferred to them. There was no error in admitting the written transfer by defendants to the claimants, since it was their evidence of title to the debt; nor did the court commit error in charging the jury, that, if they believed the evidence, they must find for the claimants. The undisputed facts showed that they had a superior claim to the debt to the plaintiff. ' There is nothing in the Georgia statutes, introduced in evidence, even if applicable here, which is contrary to the conclusion we reach. If the case were tried under those statutes, the result would be the same. The fact, there or here, that the assignment of the debt was before the garnishment of the debtor, gave the assignee a right to it, superior to that of the plaintiff derived under his garnishment. Affirmed.