Cauble v. Mutual Benefit Life Insurance

Guerry, J.,

concurring specially. In view of the fact that the garnishee owed the defendant, on February 4, 1932, a sum certain, and on that clay mailed to the defendant an ordinary cheek drawn on a bank as payment of this sum, the garnishee was not liable to a creditor of the defendant on a summons of garnishment served on it after the delivery of the check but before it was presented by the defendant for payment. In Hiatt v. Edwards, 52 Ga. App. 152 (182 S. E. 634), it was said that, “while a check is not complete payment, still it is conditional payment until dishonored, and in this sense amounts to such payment as will forestall garnishment. . . The rule is settled in this State, even in a case where the mere taking of a negotiable instrument by a creditor from his debtor does not operate as a payment of the debt, so as to preclude the creditor from suing the debtor on the original indebtedness, that, ‘as a condition precedent to final judgment [the instrument] must be surrendered to the maker, or accounted for by showing that it is not in any event enforceable against him.’ This ‘condition precedent must have been complied with before judgment in [the creditor’s] favor could legally be awarded.’” The garnishee having delivered to Mrs. Allyn its check, I am of the opinion that Mrs. Allyn might not sue on the policy without surrendering or accounting for the check. If Mrs. Allyn herself could not obtain a judgment against the garnishee, neither could a garnishing plaintiff obtain a judgment. The plaintiff could obtain no better position than its debtor. For these additional reasons I think the action of the lower court was correct.