| Mo. Ct. App. | Jun 3, 1907
The plaintiff’s petition contains three counts. The first alleges in substance that plaintiff was the surety for defendant Catron on a promissory note payable to the Bank of Moberly, Moberly, Missouri, in the sum of two thousand dollars, which defendant when it became due failed to pay, and which plaintiff was compelled to pay; and that defendant has failed and refused to repay the same to plaintiff and for which he asks judgment.
The second count is to recover the sum of one thousand dollars, which defendant owed said bank on a promissory note, on which plaintiff was surety, which defendant failed to pay when due and which plaintiff was compelled to pay, and which defendant has failed and refused to repay to plaintiff and for which he asks judgment.
The third count contains substantially the following allegations. At the January term of the circuit court of Saline county, the defendant Catron obtained judgment against plaintiff, G. R. Reynolds and J. S. Robson upon an appeal bond executed by Robson as principal and Reynolds and plaintiff as sureties, in a cause then pending in said court, wherein Catron was plaintiff and Robson defendant and appellant, for the return of certain specific property, or in lieu thereof for the plaintiff of the assessed value of the property in the sum of two hundred and forty-five dollars
Defendant’s answer admits the rendition of said judgment in his favor' against plaintiff; admits that he assigned the same to his codefendant, but denies all the other allegations of plaintiff’s petition. Further answering, he says; that he is a resident of the county of Saline and State, and denies ever having intended to change his domicil as a citizen of the State; that he is the head of a family and as such is entitled to his ex
The cause was submitted to the court which rendered judgment for the plaintiff on the first two counts of the petition, and found for the defendants on the third count thereof. The plaintiff appealed. He contends that on the face of the record proper he was entitled to the relief sought in the said third count.
In passing upon the question raised we must, in the absence of any showing to the contrary, assume that all the facts put in issue by the pleadings were determined in defendant’s favor. The facts admitted are: first, that the defendant was indebted to plaintiff in the su'm of two thousand dollars, as stated in the first count, and one thousand dollars and interest as stated in the second count of the petition; that defendant Catron had a judgment against plaintiff as stated in the third count and that the same had been, prior to the institution of this suit, assigned to defendant Heisler, in good faith for a valuable consideration.
There is no doubt but that this' court can reverse the cause if there is to be found any material error apparent upon the face of the record, although no [motion in arrest or review was made in the trial court. [McIntire v. McIntire, 80 Mo. 470" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/mcintire-v-mcintire-8007730?utm_source=webapp" opinion_id="8007730">80 Mo. 470; Land Co. v. Bretz, 125 Mo. 418" court="Mo." date_filed="1894-12-10" href="https://app.midpage.ai/document/south-st-joseph-land-co-v-bretz-8011566?utm_source=webapp" opinion_id="8011566">125 Mo. 418.]
The plaintiff’s position is, “The court having rendered judgment for appellant upon the first two counts
But there is another element in this case which takes it out of the rule thus announced. The judgment of the defendant Catron had been assigned to his codefendant Heisler in good faith for a valuable consideration prior to the rendition of plaintiff’s judgment on the first two counts of his petition, and without, so far as the record shows, any knowledge of Heisler as to Catron’s indebtedness to plaintiff. There being no judgment in favor of the plaintiff at the time of the assignment of the Catron judgment to Heisler, he took it free from any equities plaintiff 'may have had. The title passed by the assignment, for it was nothing more or less than a sale, like the transfer of any other property, and Heisler’s title was good against all the world. As against the judgment in the hands of Heisler plaintiff had no claim at the commencement of this suit.
It is true, that in Railroad v. Bowring the judgment had been assigned to Bowring’s attorneys, Hollis & Houts, but it was shown that they had knowledge of the
ment the right exists to have another judgment set off against such assigned judgment, the assignee takes subject to such right of set-off; especially is this the case, where the assignee, as in this case, has notice of such right of set-off; nor will the fact that such assignment was. made to secure an attorney’s fee antecedently earned defeat the right of set-off.” But the cases referred to, as we have seen, are wholly unlike this in principle. And besides at the time defendant Heisler received the assignment of said judgment the plaintiff’s demand was not a subject of set-off, it being an unliquidated demand. [Estate Co. v. Arms Co., 110 Mo. App. 406" court="Mo. Ct. App." date_filed="1905-03-27" href="https://app.midpage.ai/document/scarritt-estate-co-v-j-f-schmelzer--sons-arms-co-6621578?utm_source=webapp" opinion_id="6621578">110 Mo. App. 406.] All the equities in the case are with the defendant Heisler. As to the defendant Catron the equities were with plaintiff, but, as the latter had no longer any interest in the judgment, there was no subject-matter to be affected by any decree the court could render.
For the reasons given, the cause is affirmed.