Birdsbye v. Baker

• Decision Date: 05 November 1888
• Parties: BirdsbyE v. Baker et al.
• Court: Georgia Supreme Court

7 S.E. 863

(82 Ga. 142)

BirdsbyE

v.Baker et al.

Supreme Court of Georgia.

November 5, 1888.

Assignment for Benefit of Creditors—Made in Another State—Effect.

Under Code Ga. § 8, which declares that "the validity, form, and effect of all writings or contracts are determined by the laws of the' places where executed, "and that "when such writing or contract is intended to have effect in this state, it must be executed in conformity to the laws of this state, excepting wills, " a general assignment for the benefit of creditors, executed in New York by a citizen of that state, in conformity with its laws, and intended to take effect wherever the assignor had property, passes title to debts due the assignor from citizens of Georgia, though schedules of debts and assets are not attached to the assignment, as required by the Georgia statutes.

Error from superior court, Fulton county; Marshall J. Clarke, Judge.

Action by Stephen Underbill against Baker & Clark, in which certain debts due the defendants were attached by garnishment. C. F. Birdseye, assignee of Baker & Clark, intervened, and claimed the garnished fund. Judgment was (Tendered in favor of plaintiff, and the intervenor brings error.

Hoke & Burton Smith, for plaintiff in error. Calhoun, King & Spalding, for defendants in error.

Simmons, J. It appears from the record in this case that Baker & Clark, merchants doing business in the state of New York, on the 24th of November, 1886, made an assignment to C. F. Birdseye of "all and singular their copartnership and individual estate and property, real and personal, of every kind whatsoever, and wherever situated, held by and in the name of said parties, * * * except such property as is exempt by law from levy and sale." In this deed of assignment preferences were made of certain creditors. On the 7th of November, 1886, Stephen Underbill, a non-resident of Georgia, instituted his action in this state, against said non-resident assignors, by attachment and garnishment; and summons of garnishment was served upon several of their debtors residing in this state. The garnishees answered, admitting their indebtedness. Birdseye, the assignee, appeared in court, and claimed the assets as belonging to him as assignee. The case was submitted to the trial judge without the intervention of a jury, upon the following agreed statement of facts: "(1) This paper shall be construed as a properly made claim by C. F. Birdseye, assignee, for all assets garnished. (2) The debts of plaintiffs are due and correct. (3).Plaintiff [Underbill] resides outside of the state of Georgia. (4) The firm of Baker & Clark, both of whom reside out of Georgia, executed an assignment to C. F. Birdseye, on November 24, 1886, a copy of which is hereto attached. The assignment was a general assignment executed in New York, and was a legal assignment under the laws of New York. There was no schedule of assets attached to the assignment, as provided for in section 1953, (d,) (e,) Code, nor of creditors, as provided for in Acts 1884-85. The assignment covered, among other property elsewhere, choses in action in Georgia; and this claim of Birdseye, assignee, only applies to choses in action in Georgia, the attachment not having been levied upon anything else. (5) There is no agreement as to whether notice of the assignment was served on the garnishee before the garnishments were served, and each side reserves the right to suspend the case at any time, and have evidence taken on this point." On this statement of facts the trial judge decided that Birdseye, the assignee, was not entitled to the fund in court, and rendered a judgment in favor of Underhill against Baker & Clark, for the amount they were indebted to Underhill, and a judgment against Birdseye, the assignee, for the costs. To this ruling the assignee excepted, and brought the case here for review.

1. The main question before us in this case was whether this assignment, made in the state of New York, was void under the laws of Georgia. It was insisted by counsel for the defendant in error that it was void under our law, because the assignors did not attach thereto a properly sworn to, "full, and complete inventory and schedule of all the assets of every kind, held, claimed, or owned by said firm at the time of the execution of the assignment;" and also a "full and complete inventory and schedule of all indebtedness of every kind of said firm at the time of the execution of the assignment, and thenames of, the amounts due to, and the residence of, each creditor of said assignors, " properly sworn to, as required by the acts of 1881 and 1885. it was insisted that for this reason the assignment was void, being in violation of the policy of our law. It was admitted that under the laws of New York it was a legal assignment. Section 8 of our Code declares that "the validity, form, and effect of all writings or contracts are determined by the laws of the places where executed. When such writing or contract is intended to have effect in this state, it must be executed in conformity to the laws of this state, excepting wills of personalty of persons domiciled in another state or country. " 1 lere, then, is an assignment or contract which it is agreed was a valid and legal contract under the laws of the state of New York; and under this section of the Code its validity, form, and effect are to be determined by the laws of that state. It is claimed that this assignment or contract, was intended to have effect in this state, because it was introduced in the court below as evidence, and under it this fund was claimed; and that, therefore, it must have been executed in accordance with the laws of this state, which require a schedule of assets and of indebtedness to be attached to the assignment as part of the execution thereof. We can see nothing in this assignment that shows that it was intended to have effect in this state. It appears from the face of it that it was an...