Willis v. Henderson

43 Ga. 325

• Court: Supreme Court of Georgia
• Decided: July 15, 1871
• Status: Published

Opinion

McCay, Judge.

Without doubt, by the common law, it was competent to levy upon and sell the interest of a partner, in any property belonging to the partnership: Shaw vs. McDonald, 21 Ga., 395. The purchaser got the interest of the partner; he did not get an undivided title, equal to the partner’s share in the concern, according to the agreement, but the interest of the partner after a settlement of the concern affairs: 24 Ga., 625. Evidently this was a very clumsy and, often, a very unjust mode of enforcing the claims of a creditor against one of the firm. The purchaser did not know what he was buying, since his interest depended altogether upon the result of a settlement of the firm affairs.

Our Code, section 1908, prohibits the sale of effects so situated, and provides that the interest of a partner in the partnership assets may be reached by the process of garnishment. And this, we think, is far better for both parties. The proceeding is in the usual way, by affidavit, bond and summons, as in other cases, with, perhaps, the qualification that it would be incompetent to get a judgment against the firm by a service of only the party whose interest is sought. A full investigation may be had, and if the defendant in the judgment has any interest after settlement of the affairs, a judgment will go against the firm.

2. We see no reason why the defendant may not stop the execution in the way adopted. If the facts stated be true, the execution is proceeding illegally, since it is levying on an interest of the defendant, not subject to levy and sale. If they be untrue, and the property is the property of the defendant, a finding of the fact by the jury will settle the matter. We do not see, either, why the claim is not strictly proper. The claimant is not the defendant, but the partnership.

.Judgment reversed.