Miller v. Kernaghan

• Decision Date: 31 January 1876
• Citation: 56 Ga. 155
• Parties: J. F. & L. J. Miller, plaintiffs in error. v. Robert H. Kernaghan et al., defendants in error.
• Court: Georgia Supreme Court

56 Ga. 155

J. F. & L. J. Miller, plaintiffs in error. v. Robert H. Kernaghan et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1876.)

*Debtor and creditor. Assignment. Garnishment. Comity. Before Judge Gibson. Richmond Superior Court. April Term, 1875.

Reported in the opinion.

H. Clay Foster; John S. Davidson, for plaintiffs in error.

Frank H. Miller, for defendants.

Bleckley, Judge.

A British insurance company having an agent in Augusta, Georgia, issued a policy, through the latter, upon a stock of goods in South Carolina, belonging to a resident of that State. The risk became a loss on the 18th of January, 1875. Two days thereafter the policy was assigned in South Carolina, by the assured, to trustees, also residents of that state, in trust, to disburse the amount which might be collected thereon, among his creditors, according to the amount of their claims, pro rata, and to pay the expenses of such disbursement. Notice of the assignment was given to the company's agent in Augusta on the next day after it was made. After the reception of this notice, but upon the same day it was received, the agent was served with a summons of garnishment, at the instance of the plaintiffs in error, attaching creditors of the assured, residing in the state of Georgia. The attachments were founded on debts by open account. Judgments against the defendant in attachment were rendered in due time, and thereafter, the fund admitted by the garnishee's answer, being in the power of the court for distribution, plaintiffs in attachment claiming a sufficiency of the same to satisfy their attachments, and the trustees claiming the whole by virtue of the assignment, the court ordered that the plaintiffs have leave to enter up judgment against the garnishee for their pro rata share of the fund only; and that the balancebe paid over to the trustees for disbursement under the terms of the assignment. *It appeared to the court that there were numerous creditors, and that the aggregate of their claims was largely in excess of the fund, which fund, so far as appeared, constituted all the assets of the debtor.

1. Our courts will not regard an assignment made in another state which, as to assets here, contravenes our own law or declared public policy: 12 Georgia Reports, 582; 35 Ibid., 177; 37 Ibid., 262. But this assignment would have been good had it been made here: Code, section 1952. In it no trust or benefit is reserved to the debtor or to any person for him. The...