Hentig v. Johnson

107 P. 582 | Cal. Ct. App. | 1910

Appeal from a judgment entered upon motion against sureties on an undertaking to perfect an appeal from a money judgment and to stay execution thereon. (8 Cal.App. 221, [96 P. 390].)

The motion was regularly noticed and heard upon a showing by the respondent that more than thirty days had elapsed since the filing in the office of the clerk of the superior court of theremittitur of this court affirming the judgment of the trial court; that $50 additional costs had been incurred by respondent, and that no part of the judgment appealed from had been paid. It was also made to appear to the court that subsequent to the date of the original judgment, and prior to the filing of the remittitur from this court as aforesaid, the respondent Hentig assigned all his right, title and interest in and to the original judgment to one Alice P. Haney, who is still the owner of said judgment, but that respondent did not sell or assign to said assignee of the judgment any interest in either the undertaking on appeal or the undertaking for stay of execution.

Appellant here contends that the assignment of the judgment constituted an equitable assignment of the interests of Hentig in the undertaking, and that the court had no authority under the showing made to enter judgment in favor of anybody but the assignee of the judgment, Alice P. Haney.

Section 385, Code of Civil Procedure, authorizes the action or proceeding to be continued in the name of the original party, and it is only by permission of the court that the name of the assignee can be substituted. There is nothing in the record to show that in his motion for judgment against the sureties on the undertaking Hentig was not acting on behalf of the real party in interest. He continued to act as the attorney in the case in making the motion. This he might do whether for himself or his assignee, and in support of the judgment it will be presumed that he was acting for the one entitled to make the motion, whichever this was. It is unnecessary that we should pass upon the question whether Heisen v. Smith, 138 Cal. 216, [94 Am. St. Rep. 39, 71 P. 180], overrules or merely distinguishes Chilstrom v. Eppinger, 127 Cal. 326, [78 Am. St. Rep. 46, 59 P. 696].

We see nothing in the contention that the payment of a judgment entered on motion of a respondent under section 942, Code of Civil Procedure, would not estop the assignee of the respondent from entering up another judgment and collecting a second time from the sureties on the original undertaking. The assignee is not here either objecting to the enforcement of the judgment or attempting to have a judgment entered against the sureties on her own behalf. We cannot assume that she will be, and until she does, the good faith of the respondent will be presumed.

Judgment affirmed. Allen, P. J., and Shaw, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 7, 1910.