Weire v. City of Davenport

11 Iowa 49 | Iowa | 1860

Wri&ht, J.

Notwithstanding the zealous, and we may add, able manner, in which counsel for appellant has insisted upon a reversal of this cause, we feel constrained to hold that the court below decided correctly in discharging the garnishee.

Briefly and in their order we will notice the grounds upon which he attacks the sufficiency of the assignment relied upon by Plummer, as affecting his right to the judgment against the city:

I. He maintains that there'is-nothing to show that the assignment was made before the service of the garnishee notice. To this it is well answered that the assignment is dated two days prior to the service. And it is no sufficient reply to this to say that it was filed two days after and on the same day that the city was garnished. The presumption is that it was executed on the day of its date, and by the word, executed, is meant the delivery as well as the mere signing. Not only so, but the date of the filing is not material, and is no more conclusive of the time of the delivery than the date of the instrument itself. And then again, if it be admitted that the execution of the instrument only dates from the filing, then as the filing and service are on the same day and nothing shows which was first, we could not say that plaintiff should have judgment. To render the ■garnishee liable to the creditor it must, in some one of the methods pointed out by the statute, be made to appear that he was indebted to the defendant, or had property, &c., at the time, or subsequent to the service of the garnishee notice. Wo could not say, upon the assumption of the plaintiff as to the date of the execution of the assignment, therefore that it is made to appear that the city was indebted to Cotes & Patchin at the time of this service. This was for the plaintiff to establish, either by the answer of the garnishee, or in one of the other methods provided for in the Code. The answer does not show it. This is not controverted, and there is no admission of record or item of proof that makes plaintiff’s assumption sufficiently apparent to entitle him to a judgment against the garnishee.

II. But it is in the second place contended that the liability of the city was for a tort, and that this could not be assigned. This was true at common law, so far at least that the right of action for such an injury could not be transferred. What change the Code has made in this respect, we need not stop to inquire, for the reason that we entertain no doubt but that such a liability may be sold or transferred, if bona fide, so as to give the holder a priority over an attaching creditor- of the transferrer. It may be sold just as a horse or any other property may be, and the title pass just as completely. And whether the transferee could sue in his own name or not, the vendor still could not deny his title, nor could the creditors of such vendor. Not only so, but there was an action pending at the time of this assignment and the transfer related to and included the verdict and judgment as well as the mere cause of action. That this might be done in the absence of fraud so as to give the assignee or vendee a good title to the judgment, and a right to control it as his own property, we entertain no doubt. (Robinson v. Weeks, 6 How. Pr. R. 161; 7 Ib. 494; 4 Duer, 78; 2 Ker. 622.) So far as the plaintiff was concerned, notice of the assignment was only necessary to protect the assignee against the subsequent acts of the assignors, as their subsequent sale or transfer or the like.

The Code has not narrowed the assignability of claims. Whatever could be assigned before, may still be, and some claims are made negotiable which before were not. In addition to this, a right of action is given to the assignee of some claims in his own name which did not exist at common law. It is by no means true that only those instruments or claims which are specifically named in chapter 58, can be assigned. To mention none other, a judgment is not mentioned, and yet it has been held that it may be assigned so as to give the holder a right to sue thereon in his own name. Edmonds v. Montgomery & Shaw, 1 Iowa 143.

III. The third and remaining objection is that the assignment is too indefinite to transfer the claim in controversy. To this it may well be answered that plaintiff refers to this assignment in his motion for judgment against the garnishee, which he files at the commencement of this proceeding and makes it one of his exhibits. He says in his motion that this assignment was filed in the case of Cotes & Patchin v. The City. And that it was so filed, there is no controversy. There is no showing or intimation that there was any other action pending between these parties, or that Cotes & Patchin had any other judgment against the city. Under such circumstances we think the reference to the claim assigned is sufficiently definite. And not only so, but that plaintiff, by the record as he has made it up, has conceded in effect that this assignment related to this particular judgment.

Judgment affirmed.