Gamble v. The Cent. R.R. & Banking Co.

• Decision Date: 31 March 1888
• Citation: 80 Ga. 595
• Parties: Gamble et al. vs. The Central Railroad & Banking Company.
• Court: Georgia Supreme Court

80 Ga. 595

Gamble et al. vs. The Central Railroad & Banking Company.

Supreme Court of the State of Georgia

MARCH TERM, 1888.

Judgments. Assignment. Title. Garnishment. Liens. Promissory notes. Interest and usury. Exemptions. Misnomer. Jurisdiction. Before Judge Adams. Chatham superior court. June term, 1887. W. A. Gamble recovered a verdict against the Central Railroad and Banking Company for $7,750, which was set aside by the grant of a new trial November 25, 1884; and this was affirmed by the Supreme Court (74 Ga 586).—On September 19 and 27, and October 6, 1884, respectively, J. P. Sarrazin\'s Son & Co., M. C. and J. F. Kiser & Co., and Beck & Gregg served summonses of garnishment on the railroad company, which were answered Decemberl, 1884, the answers stating that Gamble claimed damages of the company, but that it denied being indebted to him therefor. On March 5, 1885, Sarrazin\'s Son & Co., and on March 15, 1887, Kiser & Co., traversed the answers. Gamble\'s suit against the railroad company was again tried at the March term, 1886, of Talbot superior court, and he recovered a verdict against it for $4,000; and judgment was entered on the following day. After the verdict, but before judgment was entered, Gamble made partial assignments of it in consideration of prior indebtedness to his wife, Kate J. Gamble, and to Z. B. Gamble and two others, his brothers, and to one Baker, subject to the liens of his attorneys for their fees. Other creditors also claimed liens. On April 4, 1887, the railroad company filed its bill against Gamble and all these other parties, praying that certain of them be enjoined from prosecuting their suits at law, and that the several parties might interplead to settle their respective rights. Answers were made, evidence submitted, and on special questions of fact submitted to the jury, it was found as follows:

W. A. Gamble's wife is a bona fide creditor of her husband, and the assignment made to her was in good faith. Not so as to Z. B. Gamble, or the other two brothers, or Baker. W. A. Gamble (as he claims in his answer) on April 6, 1887, applied, as head of a family, to the ordinary of Muscogee county for an exemption of personalty under the laws of Georgia, which was granted on April 27, 1887, to the extent of $1,600 of the judgment in his favor; but he was not then a bona fide resident of that county anddid not have his domicile there, but took up a residence there merely for the purpose of defrauding his creditors. He was not a citizen of Georgia. He signed the note sued on by Kiser & Co., containing a waiver of homestead, dated July 25, 1878. He was then a resident of Alabama. The judgment of Sarrazin\'s Son & Co. is the oldest one before the court, is valid and is due. The claim of Kiser & Co. is due and is valid (subject to the decision of the court as to the question of usury made thereon). The notice of the application for homestead mailed by the ordinary was addressed to " J. P. Sarrazin & Son " instead of J. P. Sarrazin\'s Son & Co., and to " M. C. Kiser & Co." instead of M. C. & J. F. Kiser & Co.

It appeared that, in his answer, W. A. Gamble alleged that he was a citizen of Muscogee county when he applied for the exemption; and he attached thereto the official notice of the ordinary to the railroad company, stating the facts as to the setting apart of the exemption, and requiring it to pay out of the amount of the judgment into the superior court, to be ordered paid to the ordinary for legal investment, the sum of $1,600, out of such sum as should remain after the superior court had ordered such liens as it adjudged superior to the homestead to be provided for.

The chancellor held the answers of the jury as to Gamble's not being a citizen of Georgia, when he applied for the exemption, or a bona fide resident of Muscogee county, and as to his securing the homestead to defraud his creditors, etc. were repugnant to the answer as to the fact of the grant of this exemption, as well as to the judgment of the ordinary, behind which the court might not go. But he further held that the findings of the jury, as to the improper designation of the names of Sarrazin's Son & Co. and Kiser & Co. in the notice to creditors, disposed of the exemption claim. Therefore, after providing for numerous claims not contested, he ordered that the claim of Sarrazin's Son & Co. be paid, and the balance of the fund be paid to Kiser & Co. The claims of the assignees of W. A. Gamble (his wife and Z. B. Gamble among the others) were held to be inoperative. Kate J. Gamble, the wife, thereupon excepted to the refusal of a decree in her favor. Z. B. Gamble moved for a new trial, which was refused, and he excepted. W. A. Gamble also moved for a new trial, on the grounds that the findings of the jury against his claim of homestead and in favor of the garnishing creditors, and the decree of the court thereon, were contrary to law and evidence; and this motion also being overruled, a bill of exceptions was taken. The facts as to the attack on the note to Kiser & Co., the foundation of their judgment for usury, are sufficiently stated in the third head-note.

R. R. Richards and J. A. Cronk, for plaintiffs in error.

Hillyer & Bro., Denmark & Adams and Lester & Ravenel, contra.

Bleckley, Chief Justice.

1. All judgments are assignable. Code, §§2776, 3797. But are they assignable before they are judgments? That is, when they are in merely potential, not actual, existence?

Here the plaintiff, in an action of tort for a personal injury, having obtained a verdict for $4,000 damages, attempted, not for any new consideration, but in payment of pre-existing debts, to assign to his wife an interest in the prospective judgment to the extent of $700, and to his brother a like interest of $300. Upon the following day, judgment on the verdict was entered up and signed, whereby the plaintiff in the action recovered of the defendant therein the whole $4,000. This judgment, which was silent as to any interest of the wife or brother, was conclusive evidence that between the parties thereto the relation of debtor and creditor then existed with respect to the whole sum of $4,000. Indeed, it was the judgmentthat created the debt, as a debt strictly. It was by it that the plaintiff acquired his title to the judgment itself, and his specific right to its specific produce. Previously he had no such title...