Citation Numbers: 10 Ala. App. 390, 64 So. 525
Judges: Pelham, Thomas
Filed Date: 12/16/1913
Status: Precedential
Modified Date: 7/19/2022
This suit originated in a justice of the peace court, and was brought by S. W. Irwin, the appellee, against the Louisville & Nashville Railroad Company to recover $25 on a written order or assignment
The appellant and appellee each base their right to recover the money deposited in court by the original defendant on written orders or assignments made to them at different times by Bankston. The assignment relied upon by appellant was prior in date to appellee’s; the former being dated November 21, 1911, and the latter, December 21, 1911. The record does not show whether the money deposited in court as the wages due Bankston- for services was earned subsequent to the assignment to appellant or not, but it is shown that, if subsequently earned, it was earned within 30 days from the date of such assignment, for it was shown that Bankston quit work for the L. & N. R. R. Co., on the 19th or 20th of December, 1911, and the sum deposited
The argument of appellee’s counsel, in brief, that, the consideration for the assignment to appellant being for a debt created prior to the enactment of April 12, 1911, it could not therefore be within the legislative intention that it should be excepted under the provisions of section 2 of the act, falls to the ground, under the undisputed testimony that the assignment to appellant was given to secure the payment of a debt for clothing created but two months before the date of assignment. The contention of the appellee that the prior assignment to appellant was not perfected- by his giving-notice to the debtor, and that he thereby lost his priority, and that the appellee’s subsequent assignment gained priority, must also fail, because of the undisputed facts as disclosed by the bill of exceptions. It is shown without conflict by the evidence set out that the appellant gave notice to the debtor of the assignment to him before the subsequent assignment relied upon by appellee was made or executed.
The substituted defendant, the appellant, was entitled to a judgment on the undisputed evidence, and the court was in error in setting aside its first judgment and rendering judgment in favor of the appellee.
Affirmed.