25 S.W. 1024 | Tex. App. | 1894
In this State, previous to the passage of the Act of 1889, it was held, that "if the claim was such as would survive to the executor, it would be the subject of sale and assignment; but if it was such claim as would not survive, then it would not be the subject of assignment." Stewart v. Railway,
Tested by this rule, the judgment in favor of J.W. Putnam against the railroad was assignable pending the appeal therefrom. Brooke v. Clark,
The right to transfer this judgment then existed previous to and independent of the Act of 1889. This act provides: "The sale of a judgment, or any part thereof, of any court of record within this State, or the sale of any cause of action or interest therein, after suit has been filed thereon, shall be evidenced by a written transfer, which, when acknowledged in the manner and form required by law for the acknowledgment of deeds, may be filed with the papers of such suit, and when thus filed by the clerk, it shall be his duty to make a minute of said transfer on the margin of the minute book of the court where said judgment is recorded of said court; or if judgment be not rendered when *612 such transfer is filed, the clerk shall make a minute of such transfer on the court trial docket when the suit is entered, giving briefly the substance thereof, for which services he shall be entitled to a fee of 25 cents, to be paid by the party applying therefor; and this section shall apply to any and all judgments, suits, claims, and causes of actions, whether assignable in law and equity or not.
"2. That when said transfer is duly acknowledged, filed, and noted as aforesaid, the same shall be full notice and valid and binding upon all persons subsequently dealing with reference to said cause of action or judgment, whether they have actual knowledge of such transfer or not." Act March 26, July 6, 1889, 21st Leg., p. 103.
In 2 Freeman on Judgments, section 422, it is said: "If a statutory mode of assigning judgments is provided, this does not operate as an inhibition against all other modes of assignment. It is cumulative, and does not prevent a party from making an equitable assignment in any other lawful way; and such assignment, as to all persons having notice thereof, is as effective as the statutory assignment." This seems to us the proper construction of our statute. No express condemnation of other transfers is contained therein, its leading purpose apparently being to make assignable causes of action which previous thereto could not be transferred, and to charge with notice of certain transfers when executed and filed in the manner provided. We therefore conclude that as between the parties and those not in a position to claim as purchasers without notice, a verbal transfer of a judgment is good in equity, even since the passage of this statute; and as the court below limited appellees to their alleged assignment after the rendition of the judgment, we need not consider their claim under the alleged transfer of the cause of action previous thereto. It is probable that as this cause of action before judgment could not be assigned independent of the statute, its terms should have been complied with in making a transfer before judgment, in order to constitute an effectual conveyance to one claiming thereunder.
Appellant can not claim as a purchaser without notice, because the court below required the jury to find that he had actual notice of the previous assignment to appellees; and he can not complain of the insufficiency of the evidence to support the verdict of the jury so finding, because his motion for new trial in the court below did not properly present this objection to the trial judge for his action. Clark Loftus v. Pearce,
If it be conceded that appellees had an adequate legal remedy, and the court therefore erred in granting them an injunction, which we do not decide, we do not think this should require a reversal of the judgment, because they sought this legal relief (a judgment against the clerk and *613
appellant for the money) along with the equitable, and we do not see how appellant was injured by the action of the court in withholding from him, by injunction pending the litigation, money to which he was subsequently adjudged to have no right. The dissolution of a temporary injunction does not always result from the coming in of an answer denying the equities of the bill, but much is left to the discretion of the trial judge. Freidlander v. Ehrenworth,
The judgment of the court below will be affirmed.
Affirmed.
