Hogan v. Black

66 Cal. 41 | Cal. | 1884

McKee, J.

Pending the action in hand for the foreclosure of a street assessment lien, to satisfy a demand for work done under the street law of the city and county of San Francisco, the defendants settled the matter in suit with the plaintiff in the action, by giving him a sum of money less than the amount demanded. Upon receiving the money, the plaintiff satisfied the demand and cancelled the assessment. But before doing so, he had assigned and set over the cause of action to his attorney in the action, and the latter continued the prosecution of the action in the name of the plaintiff without notice to the defendants of the assignment to him; and when the defendants settled with the plaintiff, they had no notice, actual or constructive, of any assignment by him.

As between the assignor and the assignee, the assignment transferred the interest of the plaintiff in the subject-matter of the action; but the assignee could not avail’ himself of the benefit of the same against the defendants in the action, without notifying them of the assignment, or without having himself substituted for the plaintiff in the action. (§ 385, C. C. P.; Doll v. Anderson, 27 Cal. 249.)

The settlement made by the defendants with the nominal plaintiff, without notice, actual or constructive, of any assignment of the cause of action, was, therefore, valid against the secret assignee (§ 368, supra); and his only remedy, under these circumstances, was against the plaintiff in the action, and not against the defendants. Nor did he have any attorney’s lien for costs in the action, by which he could disturb the satisfaction of the demand and the cancellation of the assessment by the plaintiff. (Mansfields. Dorland, 2 Cal. 507; Russell v. Conway, 11 Cal. 103.)

Judgment and order affirmed.

Ross, J., and McKinstry, J., concurred.