16 Alaska 313 | D. Alaska | 1956
This case was submitted for decision upon briefs and a stipulation of facts, as follows: On November 25, 1953, defendant Martin gave his promissory note for $1,500 to third party defendant Paddock payable on February 25, 1954, upon which nothing has been paid to date; on January 3, 1955, complaint was filed in this case by plaintiff First National Bank against defendant Martin for collection of certain promissory notes; on February 5, 1955, defendant Martin assigned $1,500 from the proceeds of his share of the partnership estate of Cliff Joseph, deceased, and Jack O. Martin, to the third party defendant Paddock as security for the note dated November, 1953; on March 8, 1955, Thomas Cashen, Administrator of such partnership estate, accepted the assignment; on August 2, 1955, and again on February 28, 1956, the plaintiff Bank served a writ of attachment issued out of this cause upon Thomas Cashen, Administrator; on March 1, 1956, the Administrator filed herein his Answer as Garnishee, showing distribution ordered by the Probate Court to Jack O. Martin, surviving partner of the co-partnership, of $2,507.70, and thereafter paid $1,500 claimed by plaintiff under the writs of attachment and by the third party defendant by virtue of his assignment, into the registry of this court, and $1,-007.70 to the United States Marshal under the writ of at
By such stipulation the questions to be decided herein are: (1) Is the assignment of $1,500 from Jack O. Martin to T. O. Paddock an assignment of an account or an account receivable as defined by Ch. 90, .S.L.A. 1951 ? . (2) Does the lien of the writs of attachment dated August 2, 1955, and February 28, 1956, have priority over the assignment dated February 5, 1955, and accepted March 8, 1955, where no notice of assignment of accounts receivable as required by Ch. 90, S.L.A.1951, has been filed?
It is apparently conceded by plaintiff that the assignment mentioned would be valid and superior to the rights of plaintiff under its attachment except for the provisions of the filing, statute mentioned, such assignment being prior in time to the attachment. 4 Am.Jur., Assignments, .318, Sec. 112; 5 Am.Jur., Attachment and Garnishment, 114, Sec. 864. There also appears no question but that.a vested interest in a decedent’s estate is assignable, including a future or contingent estate, if the person to take it is certain and if coupled with an interest. 4 Am.Jur., Assignments, 245, Sec. 19; 6 C.J.S., Assignments, §§ 8, 9, 11, p.1054.
Only certain kinds of assignments are generally provided by statute to be filed or recorded in order to render them valid as against claims of third persons; otherwise recording statutes are inapplicable to assignments. 4 Am. Jur., Assignments, -300, Sec. 88; 6 C.J.S., Assignments, § 57, p. 1100. In the absence of statute assignments of choses in action are not required to'be recorded or filed.
The pertinent parts of the statute in question are as follows :
(Title) An Act “Relating to the assignment of accounts or accounts receivable, defining terms, establishing validity as to creditors and subsequent assignees, providing for filing of notice * * *.
“Section 1. Terms Defined. Definitions. In this act: (1) ‘Account’ or ‘Account Receivable’ means an open book account, mutual account, or account stated, due or to become due, and not represented by a judgment, note, draft, acceptance, or other similar instrument for the payment of money; * * *.
“(2) ‘Assignment’ shall include any transfer, pledge, mortgage or sale of an account. ^*******
“Section 2. Validity as to Creditors and Subsequent Assignees — Effect of Notice — Rights of Unnotified Debtor. Subject to the provisions of Section 3 of this act, a written assignment, signed by the assignor, of an account for value, shall be valid as against, and shall have priority as to such account, over present and future creditors (excepting creditors having existing specific liens on the account when assigned) of the assignor and subsequent assignees of such account * * *.
*321 “Section 3. Notice, Filing and Form. No assignment of an account shall be valid as against present or future creditors of the assignor, or as against a subsequent assignee of such account, without knowledge of such assignment, unless such assignment shall be in writing and be signed by the assignor, and unless there shall be on file in the office of the filing officer, at the time of the making of such assignment or within ten days thereafter, an effective and uncancelled notice signed by the assignor and the assignee, in substantially the following form * *
No decisions are cited to the Court by either party touching upon the interpretation of this statute as contended by them, and none are found upon careful research. Plaintiff contends that the statute applies to the assignment in question and, no notice of the assignment having been filed as required by the Act, the assignment is void as to the plaintiff creditor. No authority is submitted in support of this contention except that by comparison with cases interpreting chattel mortgage filing statutes, this statute “means what it says” and should be so construed, with which I am in accord. Defendant simply contends that the statute obviously does not apply and therefore that the assignment is good against such attaching creditor. The question is then one of first impression, at least in this jurisdiction.
The language of the assignment is as follows:
“For value received I hereby assign to T. O. Paddock the sum of $1,500.00 to be paid from the proceeds of my share of the partnership of Cliff Joseph and Jack O. Martin, and due me from the estate of Cliff Joseph, deceased.
“This Assignment is given as security for my note dated November, 1953, for the sum of $1,-500.00 payable to T. O. Paddock.”
An assignee takes the subject of the assignment with all rights thereto possessed by the assignor. In this case the assignment became effective as soon as the. actual estate or interest of Martin came into possession of the assignee, or when the assignor became entitled to such distributive share, which was the date that such distribution was ordered by the probate court. 4 Am.Jur., 304, Sec. 95; 6 C.J.S., Assignments, §§ 9, 11, 12b, ,p. 1055. It is apparent therefore that the first attachment must be disregarded and the matter of the priority of the claims determined by the circumstances existing at the time of the second writ, at which time the estate interest of Martin assigned to Paddock was represented by the decree of distribution.
Under the law of Alaska, Commissioners acting as probate judges have exclusive original jurisdiction
An acceptance by the assignee, either actual or constructive, is necessary, but a subsequent ratification is sufficient. 4 Am.Jur., Assignments, 299, Sec. 86; 6 C.J.S., Assignments, § 73, p. 1124. By his second answer the garnishee recites the previous acceptance by him of the assignment as Administrator of the partnership estate and in effect ratifies such.
Judgment may be entered in favor of the third party defendant and against the defendant Jack O. Martin for the sum of $1,500.00, and the Clerk of Court authorized and directed to pay over said sum deposited in the registry of the court to the third party defendant or his attorney. Judgment may also be entered in favor of the plaintiff and against the defendant Martin for the sum of $1,007.70 attached under plaintiff’s writ, in the hands of the United States Marshal. By reason of the fact that any personal judgment against Martin must be limited on account of substituted service to the specific funds in the jurisdiction of the court, and also by reason of mutual relief, each party may bear his own costs and attorney’s fee.