1 Mo. App. 381 | Mo. Ct. App. | 1876
Lead Opinion
delivered the opinion of the court.
This is a suit on an appeal bond executed by defendant Luckett, as principal, and the other defendants, as sureties, conditioned according to the terms of the statute, on appeal taken to the Supreme Court from the judgment of the Circuit Court of St. Charles county, in the case of May v. Luckett. The pleadings, evidence, and admissions in the case show the following state of facts:
It is claimed by appellants (and the points are all saved by the refusal of instructions asked by defendant, and by •objections to evidence overruled on the trial, and are the •only points insisted upon here) :
2. That the bond sued on is another and different bond ■from that assigned.
3. That the court below erred in refusing to allow defend.ants to read in evidence the judgment against May, owned by Luckett.
, 1. The statute provides (Vag. Stat. 794, sec. 34) that judgments for the recovery of money may be assigned in writing, which assignment shall be attached to the judgment and attested by the clerk.
The judgment in question was not assigned as required by the statute; but the assignment was good as an equitable assignment (if the judgment could be assigned at all), for the statutory mode of assigning judgments is •cumulative, and does not prevent a party from making an equitable assignment in any other lawful way. Burgess v. Cave, 52 Mo. 43.
But could this judgment be assigned at all? It is said •that, ‘.‘judgments for the recovery of money ” being named in the statute, by a familiar rule, the expression of the one "thing is the exclusion of another; and that a judgment is mi entirety, and cannot be assigned in part.
A judgment is, undoubtedly, an entirety; a judgment .against A and B cannot be set aside as to A and maintained .as to B. It either stands or falls as to both, and, in this isense, cannot be divided. But it by no means follows that part of a judgment cannot, in the nature of things, be .assigned. It is true that part of a judgment cannot, in this State, be assigned without the consent of the debtor. Love v. Fairfield, 13 Mo. 300. This is for the protection of the debtor — against whom, otherwise, a hundred executions might issue for $1 each, with costs — and to prevent litigation, and from motives of .public policy. But semble that, with the consent of the debtor, a part of a judgment might be assigned. But in this case the question does not properly mise, because the whole of the judgment was assigned, and
2. It is said by appellants that the bond sued on is not-the bond assigned. The assignment is as follows:
“ For value received, I hereby transfer, assign, and makeover to H. C. Lackland and Wm. F. Broadhead, compósingthe firm of Lackland & Broadhead, a certain judgment in my favor, obtained in the St. Charles Circuit Court, against. Robert F. Luckett, defendant in the above named cause, at-the March term, 1872, on the — day of-, 1872, and'. also all my interest in and to a certain bond filed in said, cause, signed by R. F. Luckett and Wm. J. McElhiney.
“ Witness my hand and seal.
“ R. A. Mat, [l. s.]”
“Attest: J. Maher, Cleric.”
This was entitled, “ Robert A. May, plaintiff, v. Robert. F. Luckett, defendant. Unlawful detainer. In the St. Charles Circuit Court. March term, 1872.” It is true-that this bond is not stated, in the assignment, to have been, executed by Kellar; but the bond is sufficiently described-There is no merit in this objection.
We see no error in the record for which this judgment ought to be reversed. The judgment of the Circuit Court of St. Charles county is, therefore, affirmed.
Rehearing
delivered the opinion of the court on motion for rehearing.
This case was ably, and, as we thought, exhaustively, argued; but counsel for appellants have filed á motion fob a rehearing, and, to maintain their motion, file a written argument, in which some points are made to which the attention of this court was not heretofore called.
1. Though the judgment was assigned by May to Lack-land & Broadhead before the appeal bond was given, we are of opinion that the bond was properly executed to May, as the adverse party in the suit, within the meaning of the statute. This bond was not in existence when the judgment was assigned; the bond mentioned in the written assignment is the bond given on appeal from the justice. This
2. We adhere to the view expressed in the opinion filed, as to the question of set-off.
3. Our attention is now, for the first time, called to the fact that judgment below was entered for a sum less than the penalty of the bond. This is an informality which could in no degree prejudice defendants, and, the judgment being for the right party, we shall not now grant a rehearing oh this ground alone.
The application for a rehearing is denied.