25 Wis. 438 | Wis. | 1870
This is a rule upon George II: Foster to show cause why an order should not be made in this action requiring him to pay the costs in this court upon the appeal, with the costs of this application, for the reason, as is alleged, that the said Foster became the assignee and owner of the judgment appealed from, after its rendition in the court below and prior to* the appeal to this court.- It is claimed that Foster is liable for the costs under section 50, chap. 133, R. S., which provides that, “in actions in which the cause of action shall, by assignment after the commencement of the action, or in any other manner, become the property of a person not a party to the action, such person shall be liable for the costs, in the same manner as if he were a party, and payment thereof may be enforced by attachment.” The question is, therefore, whether the judgment has become the property of Foster in such a manner as to render him liable for the costs in this court under the above provision. As bearing upon that point, the respondent, De Witt, states in his affidavit, which is used in support of the rule, that judgment was rendered in the cause in the county court of Milwaukee county in his favor against the appellant, on or about the 10th day of December, 1866, for the sum of $367.18; that George W. Lakin, Esq., was the attorney who commenced the suit; that Perkins afterward appealed from the judgment to the
Mr. Mariner states, in his affidavit, in substance, that a notice of the assignment of the judgment was served upon him and the appellant on or about the date of the execution of the assignment. These are all the matters appearing in the affidavits of the moving party, relating to the transfer and assignment of the judgment by De Witt to Foster, which we deem it necessary to notice. It may, perhaps, be as well added here as anywhere, that a copy of the assignment of the judgment is set out in the affidavit of Mr. Lakin, from which the. assignment appears to have been made “for value received,” and is upon its face an absolute sale and transfer of the judgment by De Witt to Foster. Mr. Lakin’s affidavit, as well as that of Mr. Foster, has been used in answer to the rule to show cause, etc. ; but we think they do not materially conflict with that of De Witt upon this point, and fail to show that the assignment and transfer of the judgment by De Witt was not absolute or unconditional ; or that he retained any interest whatever in the judgment after he executed the assignment. Mr. Foster details quite fully the circumstances under which the assignment was made, and states how he happened to be connected with the transaction. He says, in substance, that he occupied a desk in Mr. Lakin’s office
We do not, however, understand Mr. Lakin as saying or intimating that the assignment of the judgment by. De Witt was not absolute for the purposes stated by him; or that De Witt retained any further interest in the judgment. By the arrangement, then, it must be assumed that Foster became the owner of the judgment; that he had the right to collect the amount due upon it; and, after paying the costs, disbursements, and Mr. Lakin’s- fees out of the proceeds, the remainder, if any, would belong to him absolutely. De Witt would have no right to call upon him to account for it or pay it over, because the latter, for a. valuable consideration, had parted with all right and interest in the judgment. It would obviously be otherwise, had the assignment been
By the Court. — So ordered.