Ainsworth v. Mobile Fruit & Trading Co. , 102 Ga. 123 ( 1897 )

Fish, J.

1. The lien of the mortgage given by Cullen on his stock of goods to Ainsworth, which was changing in specifics, was lost upon goods sold by Cullen in regular course of trade (Civil Code, § 2723) and did not attach to the proceeds of sales which were deposited with the Macon Savings Bank, the garnishee. Dowell v. Dickle, 55 Ga. 176. Nor did the lien of the mortgage attach to such part of the fund in the garnishee’s hands as may have been made up from collections on the book accounts attempted to be mortgaged by Cullen to Ainsworth, because in this State accounts can not be mortgaged.

2. The general judgment obtained by Ainsworth against Cullen by his consent, upon an equitable petition filed while the court was in session, and after the lapse of only ten days from the filing, while good between Ainsworth and Cullen, was void as to defendant in error. In American Grocery Co. v. Kennedy, 100 Ga. 462, this court held, that while a defendant may, in so far as it affects himself, waive the statutory period within which the writ is required to be filed, and thus voluntarily submit to the jurisdiction and subject himself to a judgment which would be binding upon him, such a judgment would be absolutely void as to third persons. See also Civil Code, § 5359. In State v. Gaskill, 58 Ga. 518, it was held: “Except in cases expressly provided for by law, the superior court has no power to render judgment at the first term after suit brought, so as to bind third persons thereby.” The petition upon which the Ainsworth judgment is founded was filed during the same term at which the judgment was rendered, and the judgment was rendered only ten days after the filing of the petition; so there can be no question as to its absolute invalidity as to third persons.

3. Therefore, in a contest between Ainsworth and the Mo-bile Fruit & Trading Co., over the fund belonging to defend•ant Cullen, which the Macon Savings Bank as garnishee had .paid into court, there was no error in awarding it to the Mobile Fruit & Trading Co., which had a valid judgment against Cullen, binding upon all parties, rather than to Ainsworth, who, relatively to the Mobile Fruit and Trading Co., had no judgment or lien of any kind.

Judgment affirmed.

All the Justices concurring.