Citizens' Nat. Bank v. Loomis

• Decision Date: 11 December 1896
• Citation: 100 Iowa 266,69 N.W. 443
• Parties: CITIZENS' NAT. BANK v. LOOMIS.
• Court: Iowa Supreme Court

100 Iowa 266

69 N.W. 443

CITIZENS' NAT. BANK

v.LOOMIS.

Supreme Court of Iowa.

Dec. 11, 1896.

Appeal from district court, Polk county; W F. Conrad, Judge.

In March, 1889, one Smith commenced an action against Hess, in the district court of Polk county, Iowa, for the recovery of rent, and asking the issuance of a landlord's attachment. The writ was issued, and placed in the hands of the defendant, then sheriff, for service. On April 12, 1889, the writ, with the following return thereon, was filed with the clerk of said court: “State of Iowa, Polk County--ss.: I hereby certify that the annexed writ of attachment came into my hands the first day of March, 1889, at ___ o'clock ___ m. of said day, and by virtue thereof I levied on the following described personal property: All of the furniture, fixtures, carpets, beds, bedding, kitchen and dining room furniture, dishes, etc., in the Windsor Hotel (formerly the Given House), Des Moines, Polk County, Iowa, as the property of said defendant; said levy being made the first day of March, 1889, at ___ o'clock ___ m. of said day. And I now hold said property subject to the order of the court, and now, the 7th day of March, 1889, return this writ, with my doings in the premises. C. C. Loomis, Sheriff of Polk County, by L. A. Shaw, Deputy.” On the back of the writ the following appears: “Received of C. C. Loomis, sheriff, for safekeeping, all the furniture, fixtures, carpets, beds, bedding, kitchen and dining room furniture, dishes, etc., being all the furniture, etc., in the Windsor (formerly the Given) House, and I agree to deliver the same to said sheriff on his demand or order. March 1, 1889. J. M. Griffith.” Such proceedings were had in that cause as that a judgment was entered in plaintiff's favor for $686.98 and costs, including $42,93, attorney's fees; and an order was entered that a special execution issue for the sale of the attached property. Thereafter, upon an appeal taken by the defendant to this court, the judgment below was affirmed (48 N. W. 1030); and on July 10, 1891, a special execution issued for the sale of the attached property. This execution was returned by the sheriff unsatisfied, no property being found. Thereafter the judgment was assigned to plaintiff, and in March, 1892, it instituted this action against the defendant for the recovery of the amount of said judgment, and costs. The cause was tried to the court and a jury, and a verdict returned for the defendant, upon which judgment was entered. It appeared on the trial that the property levied upon was sufficient to have satisfied the judgment, interest, and costs; and that, at the time the judgment was affirmed by the supreme court against Hess, he was, and ever since has been, insolvent. Plaintiff appeals. Affirmed.Gatch, Connor & Weaver and J. A. McCall, for appellant.

Read & Read and D. F. Callender, for appellee.

KINNE, J.

1. Appellee insists that, even if there was error in the ruling of the court in the respects hereafter spoken of, the same was without prejudice, for the reason that plaintiff has no right to prosecute this suit. The claim is that the assignment of the judgment alone did not carry with it to plaintiff the right to sue the sheriff for damages arising by reason of his alleged negligence in permitting the property levied upon to be disposed of. Just what rights will pass by the assignment of a judgment to an assignee, other than the right to enforce the judgment in the usual way, has never been determined by this court. In this case the assignment, in terms, related to the judgment only. If, therefore, plaintiff has a right to sue the sheriff for negligence, it is because such right passed by the assignment of the judgment, as an incident to it. If appellee's claim is sound, then no right of action, as against the sheriff, for damages, passed to the plaintiff bank by the assignment. Now, the right, if any, to recover damages, existed and was vested in Smith, the assignor of the judgment, prior to the time the assignment was made. If it did not pass by the assignment of the judgment, it must still remain in Smith. It can hardly be successfully contended that Smith might part with all his interest in the judgment, and still reserve to himself the right to sue the sheriff for damages arising out of a failure to do his duty in relation to the disposition of the property which had been taken on a writ issued by virtue of the very claim upon which the judgment itself was based. Nor can it be said that the assignment of the judgment had the effect of absolving the sheriff from liability for negligence in caring for the attached property. Hence we think, if a cause of action existed against the sheriff for damages for such negligence, prior to the assignment of the judgment, it must be held to still exist in favor of some one, inasmuch as there is no claim that it has been satisfied or been barred by the statute of limitations. As we have indicated, Smith, having parted with his interest in the judgment, could not maintain an action against the sheriff, because it was the interest in the judgment alone which entitled him to claim damages for the negligent loss of the property upon which he relied for the satisfaction of the same. Now, the original case was by the defendant appealed to this court, where the judgment was affirmed. A special execution properly issued for the sale of the attached property. That the right to this execution passed by the assignment of the judgment cannot be doubted. So, also, the assignee would have the right to have the property sold, and the proceeds applied in payment of the judgment. Now, if the sheriff has, by negligence, permitted the property to be lost, destroyed, or disposed of, so that it cannot be reached by this special execution, he has thereby deprived the present holder of the judgment of a substantial right, for which, in a proper case, he should be held liable to make restitution. It is the general rule that the “assignment of a judgment necessarily carries with it the cause of action on which it is based, together with all the beneficial interest of the assignor in the judgment and all its incidents.” 2 Freem. Judgm. § 431; Ullman v. Kline, 87 Ill. 268; Ryall v. Rowles, 2 White & T. Lead. Cas. Eq. p. 1667; Schlieman v. Bowlin, 36 Minn. 198, 30 N. W. 879. In the Minnesota case above cited, which was an action upon a replevin bond by the assignee of the judgment, the court said: “It is a familiar rule in equity, of universal application, that the assignment of a demand entitled the assignee to every assignable remedy, lien, or security available by the assignor as a means of indemnity or payment, unless expressly excepted or reserved in the transfer of the demand. The assignment of the demand, which is the principal thing, operates as an assignment of all securities for its recovery or collection, and upon such securities the assignee, as the real party in interest, may maintain an action in his own name.” 2 Jones, Mortg. §§ 829, 1316, 1377. In the Illinois case it was held that an appeal bond was but an incident of the debt, and a right to sue thereon was vested in the assignee of the judgment. As supporting the general rule above stated, see 1 Am. & Eng. Enc. Law, p. 884; 2 Black, Judgm. §§ 948, 952. So, it has been held that the assignee of a judgment takes the assignor's right to enforce the judgment by supplemental proceedings. Burns v. Bangert, 16 Mo. App. 22. We are aware of the fact that there are some authorities which do not go to the extent of those above cited. Thus, in Michigan it has been held that where an attachment was issued and levied upon property, and a statutory bond given to the sheriff by the defendant, who retained possession of the property, and the judgment was afterwards assigned by an instrument that did not mention the bond, such assignment did not authorize the assignee to sue upon the bond in his own name. Forrest v. O'Donnell, 42 Mich. 556, 4 N. W. 259. And see Timberlake v. Powell, 99 N. C. 233, 5 S. E. 410. We think that the assignment of the judgment in the case at bar carried with it the right to the assignee to avail himself of any remedy or means of indemnity, security, or payment possessed by, or which could have been made available to, the assignor, as against the sheriff.

2. On the trial, the defendant introduced evidence tending to show that, at the time the property was levied...