Sullivan v. Curling
Decision Date | 14 May 1919 |
Docket Number | (No. 1057.) |
Parties | SULLIVAN et al. v. CURLING. |
Court | Georgia Supreme Court |
Rehearing Denied June 14, 1919.
(Syllabus by the Court.)
Certified Questions from Court of Appeals.
Suit by H. B. Curling against W. R. Sullivan, receiver, and others. Judgment for plaintiff, and defendants bring error, and the Court of Appeals certified questions. Questions answered in the affirmative.
The Court of Appeals certified the following questions:
J. W. Quincey and L. E. Heath, both of Douglas, and J. Mark Wilcox and S. D. Dell, both of Hazlehurst, for plaintiffs in error.
McDonald & Willingham, of Douglas, and Newton Gaskins, of Hazlehurst, for defendant in error.
GILBERT, J. [1] The history of the subject of assignments of rights of action begins with the legal theory that rights of action cannot be assigned at all, on the ground that one who claims as the mere assignee of a right of action must fail in the attempt to enforce the right, because he is not in privity with the person against whom the obligation exists. In the course of ages evolution has wrought changes, and the changes have wrought some confusion. Mr. Street, in his admirable work on Foundation of Legal Liability (volume 3, p. 86), after an elaborate and learned discussion of the subject and its history, including a study of the. writings of such ancient authorities as Fleta and Bracton, as well as later writers, including Fitzherbert, Blackstoue, and Joshua Williams, arrives at the conclusion that the following demands, claims, and rights of action are assignable:
29 Harvard Law Review, 816; 30 Harvard Law Review, 449.
There are two sections of the Code of Georgia dealing with the assignablity of choses in action, and these must be considered in connection with the common law on the subject. Section 3653 of the Civil Code provides in part:
"All choses in action arising upon contract may be assigned so as to vest title in the assignee."
Obviously the codifiers who prepared this Code had in mind the ancient rule that no chose in action was assignable, and their purpose was to except choses in action arising ex contractu. Authority was delegated to them to prepare a Code "which should, as near as practicable, embrace in a condensed form the Laws of Georgia, whether derived from the common law, the Constitution, the statutes of the state, the decisions of the Supreme Court, or the statutes of England, of force in this state." Since in this section no provision was made for assigning choses in action arising from torts, the law in that regard was unaltered, under the principle, "Expressio unius exclusio alterius." Gamble v. Central R. Co., 80 Ga. 595, 599, 600, 7 S. E. 315, 12 Am. St. Rep. 276. Thus the law remained until the adoption of the Code of 1895. The rule at common law was that—
"Choses in action, except negotiable securities, could not be assigned so as to carry the legal title; and in a court of law any rights in them acquired by other persons than the owner could be enforced only in his name." Western Bank v. Maverick Bank, 90 Ga. 342, 16 S. E. 943, 35 Am. St. Rep. 210; Railroad v. Henderson, 69 Tenn. (1 Lea) 1, 3; Butler v. N. Y., etc., R. Co., 22 Barb. (N. Y.) 110.
This Code was, as a whole, enacted into law by the General Assembly, and the section appears in the Code of 1910 as section 3655. This section was derived from the decision in the case of Central R. Co. v. B. & W. R. Co., 87 Ga. 388, 13 S. E. 520, and works a modification of the common law as it stood in this state previously to that time. It is to be assumed that none of the words in this section were employed without a meaning. It had been the law from the earliest times that a chose in action arising out of tort was not assignable, and it was not necessary to enact this section of the Code in order to establish that principle. We think, therefore, that when the Legislature said that "a right of action is not assignable if it does not involve directly or indirectly a right of property, " the converse necessarily follows; that is, a right of action is assignable if it does involve directly or indirectly a right of property. This is in harmony with the rule as laid down by Mr. Street, as stated above, and with the trend of modern authority. Louisville & Nashville R. Co. v. Morse, 143 Ga. 110, 84 S. E. 428; 2 R. C. L. 613, 614; 5 C. J. 889, § 55; 38 Cyc. 463; 15 Enc. PI. & Pr. 487 et seq.; North Chicago St. R. Co. v. Ackley, 171 Ill. 100, 49 N. E. 222, 44 L. R. A. 177; Zabriskie v. Smith, 13 N. Y. 322, 64 Am. Dec. 551; Dayton v. Fargo, 45 Mich. 153, 7 N. W. 758; Comegys v. Vasse, 1 Pet. 193, 212, 7 L. Ed. 108.
Without explanation, it would appear that this case is in conflict with the conclusion which we have reached above. We find, however, from examination of the original record in the case, that the petition was filed in the trial court in the year 1893, and therefore falls in the same class with Gamble v. Central R. Co. and Central R. Co. v. B. & W. R. Co., supra; all of them having reference to cases instituted prior to the adoption of the Code of 1895. We therefore answer the first question propounded by the Court of Appeals in the affirmative; that is, such a chose in action is assignable.
(a) The assignee may institute and maintain an action against the defendant tortfeasor for the entire damage sustained by the partnership. The assignor, retiring partner, is not a proper party plaintiff to the suit; and it was not proper that the suit should have been brought in the names of both partners for the use of the assignee. Civil Code 1910, § 5517, provides:
"An action for a tort must, in general, be brought in the name of the person whose legal right has been affected, and who was legally interested in the property at the time the injury thereto was committed, and against the party committing the injury, either by himself, his servant, or agent in his employment."
We have already established that rights of action arising in tort, which involve directly or indirectly the right of property, are assignable. The Code secti...
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