Bates Ft Co. v. Forsyth

• Decision Date: 30 September 1882
• Citation: 69 Ga. 365
• Parties: Bates ft Company. vs. Forsyth, administrator, et al.
• Court: Georgia Supreme Court

69 Ga. 365

Bates ft Company. vs. Forsyth, administrator, et al.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1882.

[On account of providential cause, Jackson, Chief Justice, did not preside in this case.]

1. Where in payment of a debt a debtor assigns to his creditors certain fi.fas., stating in the transfer that it is "without any liability on my part whatever, they paying and settling all fees and costs due on said fi. fas." the creditors would have no right of action based on the transfer against the debtor, arising out of a failure to realize money on the fi. fas. If they have any right of action at all, it would be by reason of false representations or deceit; and that being an action based on a tort, would not be assignable.

(a.) The transfer of the fi. fas. being to a firm, that one of its members was the real creditor, would not give him the right to bring the action in his own name.

(b.) What one cannot recover himself cannot be recovered by garnishment against him.

2. Although one may have the right to bring an action for deceit against another, the tortfeasor is not subject to garnishment at the instance of a creditor of the injured.party. Garnishees are required to answer as to indebtedness and as to assets or property in hand, not as to the torts they may have committed against the defendant in the suit.

November 18, 1882.

Garnishment. Debtor and Creditor. Actions. Torts. Choses in Action. Before Judge UNDERWOOD. Floyd Superior Court. March Term, 1882.

Reported in the decision.

A. R. Wrtght, C. N. Featherston, for plaintiffs in error

Daniel S. Printup; C. D. Forsyth, for defendants.

Speer, Justice.

1. This case having been before this court once, as reported in 64 Ga., 232, we deem it necessary to treat only of the single question made by the record as to whether or not the court erred in sustaining the demurrer to the amended traverse filed by the plaintiffs below to the answer of the garnishee.

It appears that Bates & Co. brought suit vs. John Har-kins in Floyd Superior Court. That on said suit, on 23d June, 1875, they sued out a garnishment, which on 28th June, 1875, was served on D. R. Mitchell. At the next term Mitchell filed an answer denying any indebtedness. This answer the plaintiffs traversed generally, and subsequently amended by a special traverse alleging various facts, as will appear in the record of the former case. The traverses thus filed to the answer were dismissed on demurrer, which was excepted to, and by this court the judgment below reversed and the case remanded. See 64 Ga., 232. When the case again was called, plaintiffs further amended their traverse to the answer of the garnishee, and on demurrer, to said amended traverse the court below sustained the demurrer, and plaintiffs excepted.

It appears that Mitchell, the garnishee, was indebted to the firm of Colclough, Harkins & Glover, merchants of Rome, Georgia, in April, 1871, for merchandise and on that day, made payment in part of said indebtedness by assigning and transferring to them certain fi. fas. he owned, issued from Gordon superior court, which were due and collectable; that in said transfer the words. " without any liability on my part whatever, they paying and settling all fees and costs due on said fi. fas." appeared, and the transfer thus made was signed by Mitchell. It further appears that the fi. fas. were in the hands of Warren Akin, Esq., for collection, and on them he collected the sum of $219.00, which he refused to pay to the transferees, Colclough, Harkins & Glover, but claimed the amount to be due him by Mitchell for fees. At the direction of Mitchell, the transferees sued Akin for the amount so collected, but failed not only to collect the $219.00, but were mulcted in costs, etc, to the amount of $28.00. That on the dissolution of the firm it is...