Johnson v. Martin

54 Ala. 271 | Ala. | 1875

BRICKELL, C. J.

A judgment is incapable of assignment, so as to enable the assignee to maintain an action thereon, except by using the name of the original plaintiff.—Bunnell v. Magee, 9 Ala. 433; Freeman on Judgments, § 421. The assignment passes the equitable title if it is made for a valuable consideration, vesting in the assignee the exclusive right to control the judgment, and to use the name of the assignor, in the issue of process, or in an original suit on the judgment.—Becton v. Ferguson, 22 Ala. 599; Haden v. Walker, 5 Ala. 86; Gayle v. Benson, 3 Ala. 234; Brahan v. Ragland, 3 Stew. 247; Black v. Everett, 5 Stew. & Port. 60. Though the assignee is the beneficial owner of the judgment, and has the real interest therein* he cannot sue in his own name, under the statute. —R. C. § 2523. A judgment is not a “ contract, express or implied, for the payment of money,” within the meaning of that statute.—Smith v. Harrison, 33 Ala. 706. The suit, therefore, by appellee in his own name, was erroneous, and the demurrer to the complaint properly sustained.

Under our' statutes (R. 0. §§ 2808-9) there is no limit to the right of amendment of a complaint, except that the plaintiff must not depart entirely from the process, or substitute an entirely new cause of action, or make an entire change of parties.—Crimm v. Crawford, 29 Ala. 623; Leaird v. Moore, 27 Ala. 326; Friend v. Oliver, ib. 532; Pickens v. Oliver, 32 Ala. 626. To the complaint, as originally framed, the only party plaintiff was Martin, the assignee of the judgment. The suit is maintainable only by the holder of the legal title. The introduction of the name of the beneficial owner, with a declaration that the suit was for his use, would serve as an acknowledgment on the record of his interest, entitling him to control the suit, and to receive the money realized from it, as was often decided by this court, when all suits at law were required to be prosecuted in the name of the holder of the legal title. — Johnson v. English, 1 Stew. 169; Hunt v. Stewart, 7 Ala. 525; Bullock v. Ogburn, 13 Ala. 346. Under our present statute,’ in such case, the beneficiary is considered as the sole party on the record.—R. C. § 2524.- The death of the nominal plaintiff operates no abatement of the suit; it proceeds in the name of the beneficiary, and on his death, though the nominal plaintiff is living, te suit must be revived in the name of his personal representative.—E. C. § 2543. If the beneficiary is a nonresident of the State, security for costs must be given, as if he was the sole plaintiff on the record. — E. C. §§ 2802-3. If the suit fails, costs are adjudged directly against him. — E. C. § 2787.

It was apparent from the original complaint, that the only plaintiff, Martin, had not the legal title, to the judgment, the foundation of the suit. The complaint disclosed the plaintiffs, in the judgment, in whom the legal title resided. An amendment of the complaint, so that the plaintiffs in the judgment were made nominal plaintiffs, and the assignee, the beneficial plaintiff, did not materially change the character of the suit. The cause of action was not changed; it remained as averred in the original complaint. There was no change of the relation of the original plaintiff to the suit, which, could deprive the defendant of any right, or circumscribe his defense. No other legal title, or beneficial interest, than that which was stated in the original complaint, was introduced by the amendment. An amendment of the complaint was, therefore, proper.—Dwyer v. Kennemore, 31 Ala. 404; Harris v. Plant, 31 Ala. 639 ; Longmire v. Pilkington, 37 Ala. 296.

Presumptions on error, adverse to the rulings of the primary court, are not indulged. — 1 Brick. 781, § 118. If the facts of the case are clear and undisputed, the court may, on the request of either party, charge upon them directly without hypothesis. — 1 Brick. Dig. 336, § 7. A party seeking the revision of a general affirmative charge, must either show that the evidence was conflicting, and the charge, an invasion of the province of the jury, or he must set out all the evidence, that the appellate court may be able to determine whether the charge is authorized by it. — Ib. 337, § 30. The bill of exceptions does not purport to set out all the evidence. The evidence set out is without conflict, and about it there was no dispute. The court, at the request pf the plaintiff, charged that he was entitled to recover. The defense insisted on, was that the cause of action was barred by the statute of limitations of Georgia, where the cause of action accrued, while the defendant resided there. — R. 0. § 2911. A statute of Georgia prescribing a bar to actions was introduced, but it does not appear when it was enacted. It may have been enacted after the removal of the defendant to this State, or even after the commencement of this suit. To place the court in error, we must presume, the bill of exceptions being silent as to the fact, that it was operative and had perfected a bar whilst the defendant was a resident of the State. Such presumptions are not indulged. A party excepting must by his bill show error — no presumptions in his favor are allowed.

The judgment is affirmed.