Lawrence v. Martin

22 Cal. 173 | Cal. | 1863

Norton, J. delivered the opinion of the Court—Cope, C. J. and Crocker, J. concurring.

This action was brought to recover damages for a malicious prosecution. After the action was commenced, but before trial, the plaintiff assigned the cause of action to Gr. E. Parmelee. A verdict was obtained by the plaintiff, and then, before the judgment was entered, the plaintiff, as he states, with the consent of Parmelee, assigned one-half of the recovery to C. H. S. Williams. Some months afterwards, and after the judgment was entered on the verdict, the defendant paid the amount of the judgment to the Sheriff of San Francisco County in satisfaction of two executions held by him against Lawrence in favor of other parties. An execution having been subsequently issued on the judgment in this action, the defendant obtained an order setting it aside, from which order this appeal is taken.

The defendant claims that the payment to the Sheriff was a satisfaction of the judgment in this action, pursuant to the provisions of Sec. 240 of the Civil Practice Act. The plaintiff, in behalf of Parmelee and Williams, claims that such payment was ineffectual to satisfy the judgment, because at the time of such payment the debt had been transferred. To this the defendant replies that the assignment, being before judgment, was not of a debt, but of a cause of action for a personal injury, which is not assignable; and also, that if assignable, the payment was made before notice of such assignment.

The plaintiff cites the case of Robinson v. Weeks (6 How. Pr. 161) as a decision that the want of notice of the assignment does not render such a payment effectual if an assignment had in fact been made, upon the ground that such a payment is voluntary and the party making it must take care, at his own risk, that he pays to or for the benefit of the party to whom he at the time owes the debt. It is not necessary for us to consider the soundness of the reasoning upon which this proposition is based, because the same case admits that a cause of action for a personal injury is not assignable. That action was for an injury to property, and the Court say in regard to assignments for torts: “ The whole difficulty in regard to it, seems to have arisen from not distinguishing between such cases ” (injury to property) “ and mere personal torts, as assault and battery, slander and the like, which die with the person, and which all the authorities agree cannot be assigned.” In that case the assignment was after verdict and before judgment, as in this case, and it is clear from the remarks just quoted, that the payment would have been held good, if the cause of action had been for a personal injury, as in this case, and for that reason not assignable. “ In the latter case,” say the Court, “ there is nothing to assign but a mere injury, which does not survive the decease of the injured party, and in which no person can be regarded as having any property.” This remark answers the plaintiff’s suggestion, that he alone, and not the defendant, can object to the assignment. The objection to the assignment does not arise upon the form or sufficiency of the assignment, but upon the circumstance that the assignment is a nullity because there was no assignable subject upon which it could operate. (See also the cases of Comegys v. Vasse, 1 Pet. 193; and Hodgman v. Western Railroad, 7 How. Pr. 492.) Although the case of Countryman v. Boyer (3 Id. 387) is in words an authority for the plaintiff, the decision upon this point is made without reference to other decisions and without noticing the distinction between wrongs to the person and wrongs to property. If, as one case suggests, the assignment might amount to a covenant by the assignor not to collect the judgment when recovered, still it was not an assignment of any thing, and the plaintiff remained the owner of the judgment and the defendant’s debtor when the money was paid to the Sheriff.

The plaintiff in bis brief assumes that the payments were made upon the executions under which Sheriff Doane had made a levy, and argues that his successor, Ellis, could not receive payment upon them. The defendant’s affidavit, however, states the money to have been paid to the Sheriff on alias executions, and the receipt of Ellis is for money paid on the executions of which he had made levies.

The costs are only an incident of the verdict. They were not assigned in terms, nor was any judgment to be recovered assigned. If the verdict did not pass by the assignment, the costs did not pass.

The character of the claim was not changed, and it did not become a debt, which could be assigned in consequence of the verdict before a judgment was entered thereon. (Crouch v. Gridly, 6 Hill, 250; Kellogg v. Schulyer, 2 Denio, 73; Ex parte Charles, 14 East. 197.)

After judgment was entered upon the verdict, it became a debt which the defendant could pay to the Sheriff on executions against the plaintiff. (Mallory v. Norton, 21 Barb. 424.)

The order appealed from is therefore affirmed.