9 Ga. App. 584 | Ga. Ct. App. | 1911
On July 6, 1907, McEachern sued out an attachment against Mrs. Zada Ingraham. This attachment was on the same day levied by service of summons of garnishment upon Wilson, plaintiff in error. His answer denying indebtedness was traversed and the jury sustained the traverse. The garnishee’s motion for a
The rights of a purchaser for value before maturity and without notice are paramount to those of a garnishing creditor, and the doctrine of lis pendens does not apply to negotiable instruments not due, and the summons of garnishment on the maker of such an instrument does not impound the fund in his hands so that the transfer of the instrument in good faith- before maturity would not defeat the claim of the creditor. Mims v. West, 38 Ga. 18 (95 Am. Dec. 379). The bank upon which the check in question was drawn had the right to refuse to pay it in July, because, by reason of its date, it was not to be paid until October; but this was no dishonor of the check. The payee of the check, it being a negotiable instrument, could transfer it before maturity, for value, and if the transferee took it without notice of any defect or defense, or of any summons of garnishment on the maker of the check, and bought it in good faith, paying value therefor, then the maker of the check could not, under the law, have been liable as garnishee. The maker of the check had the right to take it up and pay it in the hands of the transferee, even after the service of summons of garnishment had been made upon him, because the holder of the check was his creditor and not the original payee. We are inclined to think from the evidence that the jury might have inferred that the J. W. Olliff Company were not in fact bona fide holders of this check, but that in cashing it before its date they were endeavoring to aid Mrs. Ingraham, the original payee, in avoiding the effect of the summons of garnishment which had been issued in the ease and served upon the drawer of. the check. At least this question was, under all the circumstances, issuable. But the charge of the court ignored entirely the legal effect of the transfer of the check to J. W. Olliff Company, and eliminated from consideration
Because of the error contained in the charge, excepted to, as above discussed, we are constrained to grant another trial.
Judgment reversed.