145 Iowa 549 | Iowa | 1910
In 1903 plaintiff instituted an action against defendant for divorce and alimony, and in that action the issuance of a writ of attachment against the property of the defendant "was authorized by the court. Under this writ of attachment notice of garnishment was served upon the Wabash Railroad Company, requiring it not to pay any debt due or thereafter to become due by it to said defendant. The garnishee answered that it had been served with an original notice of an action by this defendant against it to recover damages on account of personal injuries alleged to have been received while in defendant’s service, and that said suit had been removed to the Circuit Court of the United States, where it was then pending. This answer of the garnishee was controverted by the plaintiff, who alleged that the garnishee was indebted to the defendant for personal injuries in the sum of $50,000, and judgment was asked against the garnishee for whatever amount might be awarded her in the action for a divorce. Thereupon a stipulation was entered into between the plain
I. In view of our conclusion upon the issues tendered by plaintiff in her supplementary petition, it is not. necessary to consider the effect of a garnishment. Indeed, there is much ground for saying that, if the action were bottomed upon the garnishment alone, it could not be sustained. It appears that, as already stated, plaintiff brought, an action for divorce against her husband, Jesse K. Kithcart, one of the defendants herein, in which action she asked for an allowance of alimony. At the time of the commencement of that suit and until the final settlement with the defendant railway company, plaintiff’s husband held a claim or cause of action sounding, in tort, it is true, against the defendant railway company. In the divorce action it was agreed that plaintiff therein should have and receive as and for her permanent alimony one-fourth of whatever sum defendant, her husband, might obtain from the railway company whether upon trial or by way of compromise; and that any decree which should be rendered for alimony ■should be made a lien upon all money in the hands of the railway company due or to become due the defendant husband on, his claim against the company. Pursuant to the stipulation a decree was granted, giving plaintiff a divorce and awarding her one-eighth of the entire amount that her husband should recover, receive, or obtain from the railway company in his action for personal injuries, and the judgment was declared a lien upon any judgment which the husband might obtain in his suit or upon any amount which might be agreed upon between him and the company in settlement of the claim. Provision was also made for a final decree against the railway company in the event judgment went against it or in case of settlement, which decree was to be in favor of plaintiff and against the railway company for one-eighth of the amount of the judgment, or of the amount agreed upon by way of
But it is, in the second place, contended that the liability of the city was for a tort, and that this could not be assigned. This was true at common law, so far at least that the right of action for such injury could not be transferred. What change the Code has made in this respect we need not stop to inquire, for the reason that xve entertain no doubt but that such a liability may be sold or transferred, if bona fide, so as to give the holder a priority over an attaching creditor of the transferer. It may be sold just as a horse or any other property may be, and the title pass as completely. And, whether the transferee could sue in his own name or not, the vendor still could not deny his title, nor could the creditors of such vendor. Not only so, but there was an action pending at the time of this assignment, and the transfer related to and included the verdict and judgment as well as the mere cause of ac
See, also, Gray v. McCallister, 50 Iowa, 497-502; Clews v. Traer, 57 Iowa, 459-466; Vimont v. Railway Co., 64 Iowa, 513-520; Vimont v. Railway Co., 69 Iowa, 296-299.
The stipulation entered into by the defendant husband with plaintiff, his wife, as a basis for the decree as to alimony, amounted to a voluntary assignment of one-eighth of the cause of action held by the husband against the railway company. That defendant had notice of this assignment appears from the record, and it had this notice before it settled with plaintiff’s husband. After notice it could not pay to the assignor in disregard of plaintiff’s claim. But whether, this be true or not, the decree rendered in the divorce case, in so far as it relates to alimony, undoubtedly transferred' to plaintiff one-eighth of the amount which the husband might recover or which might be paid him in settlement of his claim against the railway
In support of these conclusions, we quote the following from Freeman on Judgments (4th Ed.), sections 425, 526:
It is no valid objection to an assignment that at the date of its execution no judgment existed. ‘The assignment carries the whole title to the subject-matter of the action, and, of course, to the judgment, when perfected. As between the parties to the assignment, clearly the whole right passes to the assignee, and the defendant, the moment the
In Ohio and in Illinois it has been held that a judgment debtor can not compromise with an assignor after notice of the assignment and thus defeat the claim of the assignee. See Pittsburg Co. v. Volkert, 58 Ohio St. 362 (50 N. E. 924). From this case we quote the following:
The same principle would apply to the case of an assignment of part of a debt. In each case a trust would be created in favor of the equitable assignee on the fund, and would constitute an equitable lien upon it. By other of the authorities such transfer is said to create an inter
These quotations from that opinion are eminently sound, and, if applied to the facts now before us, should result in an affirmance of the judgment.
The judgment against the defendant railway is correct, and it is, affirmed.