Town of Gastonia v. McEntee-Peterson Engineering Co.

Clark, J.

(after stating; the case as above). The exceptions to the judgment of the Court, holding that the attachment levied upon the water works pumping station and electric lighting plant created no lien on the property, can not be sustained. Snow v. Commissioners, 112 N. C., 335; Vaughn v. Commissioners, 118 N. C., 636.

It is true that in the case of an ordinary debt owing by a town to a third person, the debt may be garnisheed, 1 Dillon Mun. Corp. (4th Ed.), Sec. 101; but here, the engineering company itself could not have recovered the fund until it had complied with its contract with the town by furnishing it with releases of all claims for material used in constructing the work, and the garnishers can have no greater claim against the town than the garnishees through whom it is sought to make the collection. And further, as this money was not due the engineering company at the date of the garnishment (the work not having, been completed and accepted), and as the engineering company never did become entitled to demand the payment of said money, for the reasons above stated, the Several creditors who gave the town notice of their claims for material furnished the engineering company, thereby acquired a claim upon said funds, at least superior to any rights tbe garnishers acquired. Besides', the American Surety Company, having become surety to the engineering company for the faithful performance of said contract, upon any default of its principal, by which it became liable on said bond, if it did not become subrogated to the rights of its principal in this fund, it is at least entitled to have it applied to the payment of these claims for materials, in exoneration of its liability therefore. Patton v. Carr, 117 N. C., 176.

No Error.