Opinion
Rehearing denied.
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
COUNSEL:
Edward P. Cole, for Appellant.
Tobin & Tobin, for Respondent.
JUDGES: In Bank. Myrick, J. Sharpstein, J., Morrison, C. J., and McKinstry, J., concurred.
OPINION
MYRICK, Judge
The court below construed the assignment by Daly & Hawkins to O'Kane as an assignment of thei r individual as well as of their partnership [12 P. 125] property, and as it directed all of the property assigned to be applied to the payment of partnership debts, held the assignment void as thus giving a preference to the partnership creditors over the individual creditors as to the individual property.
We are of opinion this construction is correct, and that the assignment was void as to creditors. The defendant, Hyde, was a debtor of the assignors; the Hibernia Savings and Loan Society was their creditor; as such creditor, it recovered of Hyde, by garnishment proceedings, the amount of its debt due from the assignors. Hyde, by reason of his relation to the society under the garnishment proceedings, and his payment to it under such proceedings, could make inquiry into the legality of the assignment.
We are of opinion that the former action, O'Kane v. Daly & Hawkins, was not, as to the defendant herein or as to the Hibernia Savings and Loan Society, an adjudication as to the validity of the assignment.
Judgment and order affirmed.