Winn v. Armour & Co.

• Decision Date: 15 October 1937
• Docket Number: 11878.
• Citation: 193 S.E. 447,184 Ga. 769
• Parties: WINN v. ARMOUR & CO.
• Court: Georgia Supreme Court

193 S.E. 447

184 Ga. 769

WINN v. ARMOUR & CO.

No. 11878.

Supreme Court of Georgia

October 15, 1937

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Proceeding between Frank Winn and Armour & Co. Judgment was entered, and Frank Winn brings error.

Affirmed.

SYLLABUS BY EDITORIAL STAFF.

Duke Davis, of La Grange, for plaintiff in error.

Haas Gambrell & Gardner, of Atlanta, for defendant in error.

Syllabus OPINION.

RUSSELL Chief Justice.

1. "Any plaintiff or transferee may bona fide, and for a valuable consideration, transfer any execution to a third person, and in all cases the transferee of any execution shall have the same rights, and be subject to the same equities, and subject to the same defenses as the original plaintiff in judgment was." Code, § 39-401. See, also Colquitt v. Bonner, 2 Ga. 155; Hammett v. Christie, 21 Ga. 251, 253; Rawson v. McJunkins, 27 Ga. 432, 434. Judgments are not negotiable in a strict commercial sense, though they may be transferred by indorsement. See Western Nat. Bank v. Maverick Bank, 90 Ga. 339, 344, 16 S.E. 942, 35 Am.St.Rep. 210. An assignee thereof is a proper party in a proceeding to set aside the judgment and cancel the execution issuing thereon. See Slayton v. Jones, 15 Ga. 89. See, also, Code, § 110-707; Malone v. Kelly, 101 Ga. 194, 201, 28 S.E. 689. The fact that an execution issues on a void judgment will not give it vitality. Jowers & Son v. Kilpatrick Hardware Co., 21 Ga.App. 751, 94 S.E. 1044. If the judgment and execution are void in the hands of the original judgment creditor, they are void and without effect, even though transferred and assigned to another for a valuable consideration, and may be so held in a proper proceeding. See Heyward v. Finney, 63 Ga. 353; Register v. Southern States Phosphate Co., 157 Ga. 561, 122 S.E. 323.

2. A judgment rendered against a defendant where there has been no service of process or waiver thereof is a mere nullity. Where, however, the record shows an entry of service by the sheriff, the judgment is binding until such entry is traversed and set aside. Davant v. Carlton, 57 Ga. 489; Heath v. Miller, 117 Ga. 854, 864, 44 S.E. 13; Code, § 110-709.

3. Dismissal of an action for want of prosecution, where the defendant has filed a cross-action seeking equitable relief does not dismiss the issues raised by the cross-petition. This is true where the relief sought affects codefendants in the proceeding. Accordingly, dismissal of the equitable petition brought by Eidson and others, judgment creditors of Mrs. Athearn, the assignor of the judgment and execution involved in this case, against her, against the assignee of the execution, Frank Winn, and against the judgment defendant, Armour & Co., to which all of the defendants answered, and Armour & Co. filed a cross-action seeking the cancellation of the $5,000 judgment and execution rendered against it and traversing the entry of service of the sheriff in the case in which such judgment was rendered, and seeking to enjoin the assignee of the judgment, Winn, from enforcing the same, was not dismissed in so far as the issues raised by the cross-action of Armour & Co. were concerned. The same remained pending, and the court had full jurisdiction of the parties and the subject-matter, and any decree therein rendered was binding on Winn, the assignee of the judgment and execution attacked. See Code, §§ 3-510, 37-105, 37-901, 37-905, 37-907, 81-106, 81-107; American Legion v. Miller, 183 Ga. 754, 189 S.E. 837; ...