Western Union Telegraph Co. v. Ryan , 126 Ga. 191 ( 1906 )

Cobb, P. J.

1. Where one makes an assignment of his entire salary, earned and to be earned, for a named period, in a given employment in which he is engaged, it is not necessary for the assignee thereof to go into a court of equity in order to recover the amount of such salary, for such period, from the assignor’s employer. Resox-t to a court of equity is only necessary -when the assignment is of a part, instead of the whole of the salai-y. First National Bank v. Hartman Steel Co., 87 Ga. 435; Walton v. Horkan, 112 Ga. 814; Rivers v. Wright, 117 Ga. 81. The assignment involved in this ease was executed prior to the act of August 15, 1904. Acts 1904, p. 79.

Submitted March 3, Decided August 9, 1906.

Certiorari. Before Judge Lumpkin. Fulton superior court-March 15, 1905.

Dorsey, Brewster, Howell & McDaniel and Jackson & Orme, for plaintiff in error. B. B. Blackburn, contra.

2. Where an allegation of fact upon which an assignment of error in a petition for certiorari is based is not vex-ified by the answer to the writ,, such assignment of error can not be considered by the reviewing court.

3. Even if an assignment of the character indicated in the first headnote-was made as part of a contract for a usux-ious loan of money and as security for such loan, and was therefore void, tlie right to set up the usux-y and have the assignment declared void would rest only with theassignoi-, his personal representatives and privies; and the pex-son owing the salary assigned, when sued therefor by the assignee, could not do so. Zellner v. Mobley, 84 Ga. 746; Scott v. Williams, 100 Ga. 540. Especially is this true when the assignor was made a party defendant to-such suit and duly served as such, and took no steps to have the assignment declared void. See Gilmore v. Bangs, 55 Ga. 403, 405.

4. Even if it were shown, in such a suit, that tlie assignment was made-for the purpose above indicated, evidence offered by the employer of the-assignor merely for the purpose of showing that he had been notified by the assignor that, he had been discharged in bankruptcy from the-debt which the assignment was made to secure would be inadmissible.

Judgment affirmed.

All the Justices concur, except Fish, O. J., absent,. and Lumpkin, J., disqualified.