Pigford Grocery Co. v. Wilder

• Decision Date: 26 November 1917
• Docket Number: 18744
• Citation: 116 Miss. 233,76 So. 745
• Court: Mississippi Supreme Court
• Parties: PIGFORD GROCERY CO. v. WILDER ET AL

76 So. 745

116 Miss. 233

PIGFORD GROCERY CO. v. WILDER ET AL

No. 18744

Supreme Court of Mississippi

November 26, 1917

Division B

APPEAL from the circuit court of Lauderdale county, HON. R. W HEIDELBERG, Judge.

Suit by the Pigford Grocery Company against B. F. Wilder, wherein the Western Union Telegraph Company was garnished, filing an amended answer, admitting an indebtedness, suggesting that the debt was claimed by Mrs. C. R. Dement and Sams & McCall attorneys, and praying an interpleader. On motion by Mrs Dement in the name of Wilder to dismiss the cause, judgment was entered dismissing it, and the Pigford Grocery Company moved to reinstate the order dismissing as a fraud upon their rights. Judgment was rendered for the Pigford Grocery Company, and an appeal taken to the circuit court and tried de novo, resulting in judgment for claimant, Mrs. Dement from which judgment the Pigford Grocery Company appeals.

Judgment affirmed.

F. V. Brahan, for appellant.

The law gave the plaintiffs the prior lien to this fund without notice of the assignment from the day of suing out his attachment and having it levied under section 140 of the Code of Mississippi. I submit further, that the court erred in refusing the other refused instruction asked by the plaintiffs which was as follows: "The court charges the jury for the plaintiffs that if they believe from the evidence that before plaintiffs sued out the attachment herein, and the garnishment on the Western Union Telegraph Co. They examined the court's file of papers in the case of B. F. Wilder against The Western Union Telegraph Co. See section 718 of the Code of 1906, and records of the county and trial docket of the circuit court where said cause was pending to ascertain if any assignment in writing was executed between B. F. Wilder and Mrs. C. R. Dement of said cause, and filed as required by law, and found none, then the lien acquired by plaintiff's levy of his writs of attachment was superior to any rights of the claimant, by virtue of her assignment, unless the claimant has proven to the satisfaction of the jury that before the levy of the plaintiff's writ of garnishment, they had actual notice of the unrecorded written assignment from Wilder to Dement." In lieu of giving this instruction, which I submit is also reversible error, to have refused, the court gave the following instruction for the plaintiffs: "The court charges the jury for the plaintiff that if you believe from the evidence that at the time of the suing out of the attachment herein on November 28, 1914, and the service of the writ of garnishment on the Western Union Telegraph Co. on the 30th day of November, 1914, the claimant had no written assignment by B. F. Wilder to Mrs. C. R. Dement, claimant, then you will find for the plaintiffs in the sum of seventy-seven dollars and ten cents with interest at six per cent from July 8, 1916, to date, and costs of court, unless the jury further believes from the evidence that W. C. Sams, attorney for Mrs. Dement, did not agree to set aside the judgment he had taken in said court on June 5, 1916, and consented to the trial before said justice of the peace on July 8, 1916."

While this instruction was of itself equivalent to a peremptory instruction, in the light of all the testimony in this record as to when the assignment was delivered to the claimant, had the jury been permitted to act on that evidence by the above instruction that the assignment was dated in Georgia on the 27th day of November, 1914, and the attachment was sued out in Meridian, Miss. On November 28, 1914, but as given it which was very prejudicial under the law and the testimony of this record, to the plaintiff, and is reversible error.

The court gave several instructions to the claimant, which I submit were all error and particularly the instruction as follows: "The court instructs the jury that if the jury believes from the testimony that the written assignment was made by Wilder to Mrs. C. R. Dement before the plaintiffs Pigford Grocery Co. sued out his or its attachment then the jury must find for the claimant Mrs. C. R. Dement." The instruction was wrong because it overlooked the essential validity of the assignment, namely, delivery, and the jury were simply told that if they believed the written assignment was made by Wilder to Mrs. Dement which appeared to have been dated 27th day of November, 1914, before the plaintiffs sued out its attachment on the 27th day of November, 1914, they would find for the claimant.

W. C. Sams, for appellee.

"A valid assignment of a judgment will defeat a subsequent garnishment of the judgment debtor by a creditor of the assignor, although when the garnishment was served, such debtor had no notice of the assignment. Schoolfield v. Hirsch, 71 Miss. 35.

The judgment creditor cannot acquire any greater interest in a garnishee's fund than that held by the debtor himself." Schuler v. Murphy, 91 Miss. 518. Also, a judgment may be assigned by parol. Pass v. McRae, 36 Miss. 143. Also a judgment may be assigned so as to vest in an assignee an equitable right to it and the power to use the name of the plaintiff in enforcing it. Van Houton v Reily, 6. S. & M. 440. ...