Funkhouser v. How

Ryland, Judge, delivered the opinion of the court. Erom the statement herein,-if a state of facts could exist not inconsistent therewith, by which How could lawfully have collected the money, then these plaintiffs cannot recover in this action. The demurrer, then, would have been properly sustained. Let us see. The insurance policy was obtained on the 16th of April, 1850, for, two years, on the life of Lesher. Some time about the 1st of March, 1851, Lesher died. The Insurance Company then became liable to pay, but, by the terms, could not be forced to pay until the expiration of sixty days from notice of death. Now on the 8d of July, 1851, Thomas Crew assigned the policy to Micajah B. Crew ; on the 2d of August, Micajah B. Crew assigned the policy to the plaintiffs. Afterwards, the defendant, under color of judicial proceedings, to which neither Micajah nor the plaintiffs were parties, wrongfully and unjustly required and compelled the Insurance Company, about the 1st of May, 1852, to pay to him the five hundred dollars, and he received the same in discharge of the obligation of said company. Now might it not well have been, that the defendant, How, commenced this proceeding of garnishing the Insurance Com [228] pany, and giving notice thereof to Thomas Crew previous to his assignment, although the money was not paid until about .the 1st of May, 1852, and although Micajah B. Crew and the plaintiffs had no notice of these proceedings. If this could be so, then the company might have lawfully paid this money. I only state, this is not inconsistent with the plaintiffs’ petition, for they have not averred the want of notice to Thomas Crew, the original payee and holder of the policy; nor have they averred that the proceedings at law under color of which the defendant unjustly and wrongfully obtained the money, were commenced after the policy had been assigned to. Micajah, or after it had been assigned to the plaintiffs. For what appears on the petition, it may well have been, then, that How received this money by virtue of a proceeding begun before Micajah B. Crew or the plaintiffs had any interest therein, or had any notice of such proceeding. There is nothing of weight in the objection as to the form or mode or phraseology of the assignment; but, because it is possible a state of facts could exist not inconsistent with the facts contained in the petition, by which How could lawfully have received the money from the Insurance Company, and, consequently, a payment by them have protected the company, the petition did not contain a sufficient cause of action against How. The judgment of the court below must, therefore, be affirmed — and the other judges concurring herein, the same is affirmed.