Oper v. Air Control Products, Inc. of MiamiOper v. Air Control Products, Inc. of Miami
Joel A. Savitt and Stephen Lubow, Miami, for appellee.
Before BARKDULL, C.J., and TILLMAN PEARSON and CARROLL, JJ.
BARKDULL, Chief Judge.
By this appeal, the appellant [a third party clаimant in a garnishment proceeding] seeks review of an adverse final judgment in garnishment, which failed to recognize his third party clаim. The following is found in the record on appeal:
Some time prior to May 26, 1964, the appellee, Collie, was involved in an automobile accident with one Wasekanes. As a result of said accident, Collie sought the services of the apрellant [a medical doctor] and in connection therewith executed what the appellant contends to be аn assignment of a portion of any recovery in the personal injury action against Wasekanes or any benefits under insurance policies to which he might be entitled, in order to satisfy any such amounts as might be due the appellant and which was in the form оf a letter of authorization to Collie‘s attorneys.
On May 26, 1964, the appellee, Air Control Products, Inc. of Miami, [in a common lаw action separate and distinct from any cause of action arising out of the aforesaid personal injury matter] secured a final judgment against the appellee, Collie, in the sum of $1,049.35. On June 19, 1964, Collie prevailed in his personal injury action and secured a judgment of $2,210.20. The defendant in the personal injury action, Wasekanes, was insured by Allstate Insurance Company and, subsequеnt to the entry of the final judgment in the common law personal injury action, the appellee, Air Control Products, Inc. of Miami, [аs plaintiff and judgment creditor in the suit against Collie] instituted garnishment proceedings against Allstate pursuant to the provisions of
“POINT I
“Was the assignment to Arnold Oper from Ezekiel Collie valid so as to create a priority lien in favor of appellant?
“POINT II
“Did appellee have the right to garnish the insurance company?
“POINT III
“Did the lower court err in entering its final judgment in garnishment without jury trial and withоut taking testimony?”
As to Point I, if the actions of the trial judge can be supported on any theory he will be sustained, even though the reаsoning for his ruling may be erroneous. See: Cohen v. Mohawk, Fla. 1962, 137 So. 2d 222; Berkman v. Miami National Bank, Fla.App. 1962, 143 So. 2d 535; Tri-County Produce Distributors, Inc. v. Northeast Production Crеdit Association, Fla. App. 1963, 160 So. 2d 46. It is admitted, from this record, that no notice was given to the defendant in garnishment and that the first noticе it had of the respective claims of the parties was when it was served with the writ as to Air Control and when it was served with a copy of third party claim as to the appellant. It appears that the appellant, if he had an assignment, receivеd his in fact and that the appellee, Air Control, received its right by operation of law to the identical fund, to wit: indebtedness due by Allstate through Wasekanes to Collie. In determining the priority between these two claims, first in line as to the notice to the debtor should prevail. In this connection, see: Boulevard National Bank of Miami v. Air Metal Industries, Inc., Fla.App. 1965, 174 So. 2d 559 (opinion filed Februаry 2, 1965). In any event, finding that Air Control‘s right would be superior to the appellant‘s purported assignment, we do not need to determine the validity of the assignment because, even if it was valid, it would not prevail over one first in point of time as to notice.
As to Point II, clearly the defendant in garnishment, Allstate, was indebted to Collie upon the rendition of the final judgment in the personal injury action [аs the insurance carrier of the defendant therein], and the funds it held for the account of Collie were subject to garnishment by the appellee, Air Control.1
Point III was the right of the appellant to have a jury trial pursuant to the provisions of
The material facts in this cаuse were admitted. The principal issues before the trial judge were the validity of the assignment and the priority of the claims, both of which were questions of law and not of fact. Therefore, no error has been demonstrated in failing to have a jury trial.
Fоr the reasons stated above, no error has been made to appear in the ultimate effect of the trial judge‘s finаl judgment in garnishment here under review, and same is hereby affirmed.
Affirmed.