Winton v. Irwin

64 So. 525, 10 Ala. App. 390, 1913 Ala. App. LEXIS 376

Opinions

PELHAM, J.

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 of the wages of one Willie Bankston, an employee of the defendant railroad company. The L. & N. R. R. Co., as defendant in the suit, appeared and deposited the sum of $13 as the amount due by it to Bankston for wages, and filed an interpleader under the statute, and suggested, among other claimants for the fund, S. M. Win-ton, the appellant, who appeared in the justice court and was substituted as party defendant, and, after judgment was rendered against him there, appealed the case to the circuit court. The case coming on to be heard in the circuit court, and being tried before the court without a jury, a judgment was rendered in favor of the appellant, Winton, but on a subsequent day of the term, on motion of the appellee, Irwin, the court set aside this judgment for the substituted defendant, Win-ton, and entered a judgment in favor of the appellee, the plaintiff in the suit, from which judgment the appellant brings this appeal, and assigns, among other errors, the action of the court in setting aside the judgment in his favor, granting a new trial, and rendering judgment for the appellee.

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 was for wages earned during the term of his employment that ceased at that time. This being true, the assignment to appellant would not be void under the act approved April 12, 1911 (Acts 1911, p. 370), to regulate the assignment of unearned wages, as it would fall under, the exception made by section 2 of said act. The undisputed evidence showed the assignment to appellant to have been given to secure a payment for clothing, bringing it within the provisions of the exception made in section 2.

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.