80 Ga. 595 | Ga. | 1888
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 oí $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 judgment
There can be no doubt that, until the judgment was actually rendered, the action for the tort was still pending, for save in a pending action no judgment can be rendered. After an action has ceased to be pending, after it has terminated, no judgment that the plaintiff does recover can be entered up; nor, until after final judgment, can either party, as a general rule, have a writ of error, the reason being that prior to that stage the action has not terminated. We think that, in Georgia, whilst an action is pending for a tort, there can be no legal assignment of the cause of action or of the damages to be recovered. Authorities differ somewhat as to whether rights of action for torts are choses in action, but the code, §2243, settles the question affirmatively for us; and in the next section it treats them by implication as non-assignable, for it provides that “ all choses in action, arising upon contract, may be assigned so as to vest the title in the assignee.” On the principle that, the mention of one thing is the exclusion of another, (expressio unius exclusio alterius,) choses in action aris
As the assignees acquired from the assignor no title to the fund, they haye at most a mere equitable claim upon it, in the nature of a lien. The fund is to be administered as his assets, not as theirs in whole or in part; and being legal assets, legal priorities prevail. Code, §31-13; Rohinson vs. Bank of Darien, 18 Ga. 65; Dowell vs. Dickle & Co., 55 Ga. 177. It follows that the judgment creditors are entitled to be paid in preference to the assignees, and that the ultimate result arrived at below was correct as to these two plaintiffs in error. Being entitled to nothing, they got nothing.
The result is, that the judgment below as to the assignees is affirmed; as to the debtor (whose motion for a new trial was denied), it is reversed.