Turk v. Cook

63 Ga. 681

• Court: Supreme Court of Georgia
• Decided: September 15, 1879
• Status: Published

Opinion

Warner, Chief Justice.

This case came before the court below on a certiorari to the county court of Jasper county. It appears from the record that Turk sued Cook on an account for 11-J bushels of wheat, of the value of $23.00; .and it also appears that the wheat was claimed as toll for threshing the defendant’s crop of wheat, by a company composed of Leverett, Aiken, Lancaster, and Turk, the plaintiff, who were partners in the wheat-threshing business. One witness testified that on division, this claim on- theidefendant was assigned to Turk, the plaintiff. The county court gave judgment for the plaintiff for the amount of his account, and Cook sued out a certiorari and brought the case to the superior court-. On the hearing of the case, the court sustained the certiorari on the ground that the plaintiff, Turk, had no right to bring suit in his individual name on the demand sued on. Whereupon Turk, the defendant in certiorari, excepted.

1. The controlling question in this case, is whether the plaintiff, Turk, had such an interest in the account sued on as would entitle him to maintain a suit thereon in his own name. By the 2244th section of the Code, all dioses in action arising upon contract may be assigned so as to vest the title in the assignee, but the assignment must be in writing; that, in our judgment, is the proper interpretation of this section of the Code. An assignment in law, as defined by Webster in his dictionary, “is a transfer of title or interest by writing,” and this construction of that section of the Code above cited, is in accordance with sound public policy. There being no evidence in the record of any written assignment of the chose in action to the plaintiff, Turk, we affirm the judgment of the court below in sustaining the certiora/ri.

2. There was no error in the court’s saying to the counsel for defendant in certiora7'i, that it would continue the case unless he would waive the answer of the county judge to the certiorari.

Let the.judgment of the court below be affirmed.