Citizens' Bank & Trust Co. v. Pendergrass Banking Co.
| Decision Date | 07 May 1927 |
| Docket Number | 5674. |
| Citation | 138 S.E. 223,164 Ga. 302 |
| Parties | CITIZENS' BANK & TRUST CO. et al. v. PENDERGRASS BANKING CO. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
Judgment against partner is not lien on his individual interest in firm property, and such interest, under Civ. Code 1910, § 3190, is not liable to levy and sale under execution on such judgment, even after dissolution, but must be reached by process of garnishment.
Waiver of all homestead and exemption rights in note on which holder obtained judgment did not give holder of note right and title to homestead exemption.
Right of partner to homestead exemption out of property of his firm is a chose in action, and assignment of such chose in action before institution of collateral proceeding or garnishment passes to assignee property in chose assigned free from lien of general judgment previously rendered against assignor, in view of Civ. Code 1910, § 5948.
Right to homestead or exemption can be transferred and assigned before assignor is adjudged bankrupt, or before bankruptcy proceedings are instituted.
Where assignment of homestead exemption was made prior to discharge in bankruptcy in payment of note in favor of assignee containing waiver of all rights to homestead and exemption there was sufficient consideration for assignment which was not rendered nugatory by subsequent discharge in bankruptcy.
Where homestead exemption was assigned before bankrupt's discharge in payment of note to assignee containing waiver of homestead and exemption, discharge of bankrupt would bar assignee from further enforcement of note against assignor but would not bar assignee from asserting title to homestead exemption under assignment.
Error from Superior Court, Jackson County; W. W. Stark, Judge.
Separate petitions, by the Citizen's Bank & Trust Company against R. J. Hartley & Son and others and by the Pendergrass Banking Company against R. J. Hartley, consolidated for trial. Judgment for petitioner Pendergrass Banking Company. Motion for new trial by petitioner Citizens' Bank & Trust Company and another was overruled, and they bring error. Reversed.
Stephen C. Upson, of Athens, for plaintiffs in error.
John J. Strickland and Rupert A. Brown, both of Athens, and H. W. Davis and G. W. Westmoreland, both of Jefferson, for defendant in error.
Syllabus OPINION.
1. A judgment against a partner is not a lien upon his individual interest in the firm property, and such interest is not liable to levy and sale under execution upon such judgment, even after dissolution, but must be reached by process of garnishment. Willis v. Henderson, 43 Ga. 325; Anderson v. Chenney, 51 Ga. 372; Ferris v. Van Ingen, 110 Ga. 102 (4), 35 S.E. 347; Civil Code 1910, § 3190.
2. The waiver of all homestead and exemption rights in the note upon which the judgment in favor of Pendergrass Banking Company was based did not give to the bank a right and title to the...
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