Steele v. Thompson

62 Ala. 323 | Ala. | 1878

BRICKELL, C. J.

The errors assigned are numerous, but we do not feel bound to express an opinion in reference to any other than such as are insisted upon in the argument of counsel.— Weathers v. Spears, 32 Ala. 584 ; Cunningham v. Carpenter, 10 Ala. 109.

The first question is, whether it is the duty of the clerk of a court in which a judgment has been rendered to issue execution thereon, at the verbal request of an attorney of the assignee of the judgment, the assignment not appearing of record in the court, and no written evidence of it being shown him, nor the attorney having entered himself of record, as an attorney for the plaintiff in the judgment. Judgments, as well as choses in aetion, are assignable. The assignment may not clothe the assignee with the legal title, but if it is unqualified, it passes the entire equitable interest, and is an irrevocable authority to employ the name of the assignor in enforcing it, and collecting and receiving the money due thereon. The court in which the judgment was rendered will protect the rights of the assignee, and will prevent the assignor from interfering with his contract over it. No payment made to the assignor after notice of tbe assignment is valid, and by no release or admission can he impair the equity of the assignee. — Holland v. Dale, Minor, 265; Gayle v. Benson, 3 Ala. 234; 2 Brick. Dig. 153, § 312 ; Freeman on Executions, § 21. The assignment may be by writing, or by parol, and either, when founded on a sufficient consideration, passes the same rights, and confers the same authority. No entry of it on the records of the court is essential to its validity and operation, nor is there any statute, or rule of the common law, requiring that such entry shall be made.

An execution in civil actions, is the process by which the debt, or damages, or other thing recorded, and the costs adjudged, is obtained. The clerk of the court is charged with the duty of issuing the original, within a certain number of days after the adjournment of the court. If satisfaction is not obtained by the orginal, the party interested has the right to an alias, and a pluries, until satisfaction is obtained. These writs it is the duty of the clerk to issue on application ; and his failure is a breach of his official bond, which binds him to the performance of all the duties required of him by law. The application may be oral or written. If the clerk deems it necessary for his protection, he may require that it be reduced to writing. But if it is oral, and he makes no objection on that ground when it is made, he cannot subsequently excuse his failure to comply with it, on the ground that it was not in writing. If he had objected, the cause of objection would have been easily removed; but not then objecting, and tacitly accepting the application as sufficient, it would be gross injustice to suffer him to excuse his failure from which injury has resulted, because of the manner of the application. So, if the application is made by a party having the real interest in the judgment, entitled to control it, though his interest and authority may not appear of record, he may demand some evidence of the interest or authority, if he doubts it. But if he makes no such demand — if by his silence he recognizes the interest and authority, it would approach a fraud, if he was heard subsequently to say in excuse for his failure to issue the writ, when injury had resulted, that no evidence of the interest or authority was shown him. As assignee of the judgment against Kirksey, the appellee had full authority over it. It was his right to demand execution thereon in the name of the plaintiff, and it was the duty of the clerk to comply with the demand when it was made. There is no particular form required, in which the demand should be communicated to the clerk, and if there had been, the form could have been waived by the clerk, and it was waived when he did not object to the form in which it was made. The assignee may control the judgment through an attorney, or an agent, and the demand or instructions of the attorney or agent, are of the same force as if they had proceeded from him personally.

It is enough to say in reference to the remaining question, there was no evidence the judgment was satisfied before the demand of the issue of execution. On the contrary, the evidence seems to us, undisputable, that it was unpaid, and the just inference is, the clerk knew the fact,

Let the judgment be affirmed.