Richardson v. Conn

100 Ga. 39 | Ga. | 1896

Simmons, Chief Justice.

1. This Was -a contest in the superior count between Richardson and Conn, judgment creditors of Joiner, upon a rule against tibe sheriff ito distribute money in his hands arising from the sale of property of Joiner ulnd-er an execution issued on Richardson’s judgment. At the trial Joiner filed a traverse attacking the judgment for -want of service upon him in the suit in which it was rendered. The judgment thus attacked was rendered in the county court. The court, on demurrer, held that such an attack could not he made in this proceeding. We think the court was right in so holding. The question whether or not a creditor contesting for the fund could, upOn proper proceedings, -to which the officer making the return was -a party, -attack the judgment on the ground stated, is hot made in this court.

2. The court awarded priority to Conn’s judgment, and to this Richardson excepted. Conn’s judgment was older than that of Richardson, but Richardson contended that it was discharged because the attorney who represented Conn in the enforcement of the judgment, applied to' junior judgments in favor of other creditors, which were in his hands at the same time, money arising from 'a sale" under the latter of property which was subject to Conn’s judgment. We think the court was right in deciding against this contention. Oonn’s judgment was against Joiner and another party as principals, and against Súber and Glover as securities; and the junior judgments here referred to, which were in favor of Rogers & Company, were against Súber and Glover only. The code declares that “As among themselves, creditors must so prosecute their own rights as not unnecessarily to jeopard the rights of others; hence, a creditor having a lien on two' funds of 'the debtor, equally accessible to him, will be 'compelled to pursue the one on which other creditors have no lien.” (Civil Code, §2691.) Conn, having a lien on property of Joiner, as well as on property of Súber and Glover, while Rogers & Company had liens only upon property of Súber and Glover, could therefore have been compelled by Rogers & Company to resort to property of Joiner, instead of resorting t’o 'the property subject to Rogers & Company’s liens; ’and the doing by the attorney of what Conn could have been compelled to do, certainly could noit operate to discharge Conn’s judgment. See, also, on this subject, Newsom et al. v. McLendon et al., 6 Ga. 399, 400. Judgment affirmed.