26 Wash. 28 | Wash. | 1901
The opinion -of tlie court was delivered by
In March, 1896, judgment was entered in the circuit -court of the United States in this district in favor of plaintiff, in an action against the Western Mill Company, a corporation, and the respondent, the Third Street and Suburban Railway Company. In the action plaintiff was awarded judgment against the Western Mill Company, a corporation, and Denny, Kinnear, Lombard, Erankland, McDonald, Leary, Edwards and Oldfield, in the sum of $24,130, together with costs and attorneys’ fees, and the judgment was decreed a prior lien upon certain real estate, and the buildings and improvements thereon, as against any claim of lien of the respondent railway company, which was made a defendant in said action upon an allegation in the complaint that said railway company
If the order sustaining the demurrer to the reply was correct, it will be unnecessary to discuss the other exceptions. While it is true that the bond to answer for damages and costs of appeal is a contract and security for such payment, it is also incidental to the pending action. The object of the bond is the security of the plaintiff to render his judgment effective, to save him harmless by reason of the appeal. It may be said to be collateral to the judgment. The general principle seems to be that an obligation or indebtedness carries with it all securities created for its protection and enforcement. Colebrooke, Collateral Securities, §144; 2 Am. & Eng. Enc. Law (2d ed.) p. 1086. That the appeal bond is transferred to the assignee of the original judgment by force of the assignment of the judgment is certainly the general rule stated by the authorities which have been presented to us. 2 Black, Judgments, § 948; Freeman, Judgments (1st ed.) 149, note; Ullman v. Kline, 87 111. 268; Bolen v. Crosby, 49 IST. Y. 183; Vila v. Weston, 33 Conn. 42; Burt v. Lustig, 60 N. Y. Sup. Ct. 181; affirmed 137 N. Y. 538 (33 N. E. 336) See, also, Stanford v. Connery, 84 Ga. 731 (11 S. E. 507); Hewett v. Outland, 2 Ired. Eq. 438; Clarke v. Hogeman, 13 W. Va. 718.
It seems to be the uniformly received doctrine that partial assignments of judgments cannot be made without the consent of the judgment debtor. We do not think the understanding between the owner and assignee of a reservation of some rights in the assignor in the incidents collateral to the judgment takes the plaintiff’s assignment of his judgment out of the general rule that the assignee alone may realize on the judgment and collateral securities. For these considerations the judgment is affirmed.
Andees, Eullebton, White and Dunbab, JJ., concur.