Gillette v. Murphy
| Decision Date | 30 July 1898 |
| Citation | 54 P. 413,7 Okla. 91,1898 OK 53 |
| Parties | GILLETTE et al. v. MURPHY et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. In a controversy over a certain judgment between two or more parties, as to who is the equitable owner thereof, where the judgment debtor fails to plead when made a party defendant and has been duly summoned, and fails to appear at the trial either in person or by attorney, and the losing parties in such action appeal from the judgment of the trial court, such judgment debtor is not a necessary party to an appeal to the supreme court, and cannot be in any way affected by a reversal or modification of the judgment appealed from; its liability having been fixed when the first judgment, which was the subject of the action between the parties to the suit, was rendered.
2. Written orders given by an ex sheriff to his creditors on a county for warrants due from it to such exsheriff for salary and other fees, either in full payment and satisfaction of a pre-existing debt, or as security for the same, operate as an equitable assignment of the account or chose in action for which such warrants were to be issued from the delivery of such orders to such creditors; and where the orders do not embrace the entire chose in action, and the county denies any liability to the ex sheriff, and refuses to issue the warrants as directed in such orders, and suit is brought against the county by such ex sheriff with the tacit assent of the persons holding the orders, the county alone can object to such suit on the ground that it is not being prosecuted in the name of the real party in interest; and after judgment is obtained in the name of the ex sheriff, the parties holding the orders have an equitable interest therein, which equity will enforce, and such equities are prior to those of a firm of attorneys who claim such judgment by virtue of a subsequent assignment of the chose in action before judgment, and by an attorney's lien filed after judgment, especially when the attorneys knew of the equities of the person holding such orders prior to the filling of their lien; but, where the claim was saved by the skill and labor of such attorney, a court of equity may allow them a reasonable attorney's fee out of the amount recovered for each party holding an order for warrants, and a fee of 25 per cent. of such amount so recovered is a reasonable fee.
3. A party buying a chose in action takes it subject to all existing equities, and can acquire no greater interest therein than his assignor had, at the time of the assignment.
4. An agreement between an attorney and his client, whereby the client agrees to pay such attorney a reasonable fee out of the proceeds of a proposed law suit, does not amount to an equitable assignment of an interest in the subject-matter of the litigation.
5. Where the evidence reasonably supports the findings of facts of the trial court, such findings will not be disturbed on appeal.
6. Where a party has an equitable interest in a judgment injunction will be granted to prevent the person in whose name the judgment was rendered, his assignees with notice and attorneys with notice claiming under a attorney's lien, from selling or transferring such interest.
Appeal from district court, Canadian county; before Justice J. C Tarsney.
Action by Murphy, Carroll & Brough and others against Gillette & Libby and others. Judgment for plaintiffs. Defendants bring error. Affirmed.
F. E. Gillette, M. D. Libby, and W. H. Grigsby, for plaintiffs in error.
Blake & Blake, for defendants in error, Murphy, Carroll & Brough.
R. B. Forrest, for defendants in error Young & Tinklepaugh.
The above-named defendants in error commenced an action in the district court of Canadian county on February 22, 1897, to enjoin the defendants (in that suit) T. R. Jackson and Gillette & Libby from assigning or in any way transferring a certain judgment rendered in that court against the board of county commissioners of Canadian county, and in favor of T. R. Jackson, which judgment Jackson had previously assigned to Gillette & Libby; but plaintiffs claimed that they were the equitable owners thereof. The facts leading up to the present suit are about as follows: T. R. Jackson was the duly elected qualified, and acting sheriff of Canadian county during the years 1893 and 1894. He failed to make annual settlements with the board of county commissioners; but some time during the month of January, 1895, and after he had retired from office, he filed with such board itemized accounts for services claimed to have been performed by him as sheriff for that county, amounting to $839.80. On January 15, 1897, the county commissioners audited and allowed all of the accounts or claims of Jackson, and ordered warrants drawn therefor in his favor; but on the next day, January 16, 1895, the county commissioners rescinded and canceled the order of allowance made the previous day, and assigned as a reason therefor that Jackson and collected and retained fees in an amount greater than his lawful salary, and that he (Jackson) was at the time indebted to the county in consequence thereof. On January 25, 1895, Jackson was indebted to the firm of Murphy, Carroll & Brough in the sum of $221.05, and on that day he made and delivered to such firm the following order: And as a part of the same transaction, and at the same time, the parties entered into an agreement by which Jackson executed his note to Murphy, Carroll & Brough for the amount due them, which note was to mature 60 days from that date; and the above order was delivered to Murphy, Carroll & Brough, upon the condition that, if the warrants mentioned in the order were issued and delivered to Murphy, Carroll & Brough, the warrants were to be in full satisfaction and discharge of Jackson's indebteness to them, and his promissory note was to be surrendered and canceled, but, if the warrants were not issued and delivered as directed in the order, then the promissory note was to remain in full force and effect. The warrants were never delivered to Murphy, Carroll & Brough, and this note has been paid by Jackson. They have frequently demanded payment, and Jackson has at all times acknowledged his liability thereon. On February 1, 1895, Jackson was indebted to J. E. Jones in the sum of $162.75, and on that day he executed and delivered to said Jones his order, as follows: At the time this order was given, it was agreed between the parties that the warrants referred to in the above order were to be delivered to and received by Jones in absolute payment of Jackson's debt to him. If, however, the warrants mentioned in the order were not delivered as directed therein, then the debt due from Jackson to Jones was to remain a valid, subsisting liability until otherwise satisfied. Jones, some time after receiving the above order, assigned the same to one D. J. Young, who was the owner thereof at the commencement of the present suit. On February 14, 1895, Jackson was indebted to one V. D. Tinklepaugh in the sum of $58, and on that day he executed and delivered to Tinklepaugh the following order and agreement: Agreement: Since the execution and delivery of the order and contract, Jackson has paid Tinlepaugh $35, which reduces his claim from $61.50 to $26.50. This amount remains unpaid. At the time Jackson executed and delivered the order to Murphy, Carroll & Brough, neither Murphy, Carroll & Brough nor Jackson had any knowledge of the action taken by the board of county commissioners, on January 16, 1895, rescinding and disallowing Jackson's account. Murphy, Carroll & Brough, Jones, and Tinklepaugh each filed their respective orders with the county clerk as soon as they received them, but no warrants have ever been issued in conformity therewith. On May 29, 1895, the board of county commissioners of Canadian county instituted an action against T. R. Jackson, as sheriff of that county, and the sureties on his official bond, to recover from them a sum exceeding $3,000, alleged to have been collected and received by said Jackson as sheriff during his term of office, in the way of fees, and in excess of the amount of his lawful salary.
Jackson answered by a general denial, and by a counterclaim, and in his counterclaim included the items and accounts for which he had issued the above orders to Murphy, Carroll & Brough Tinklepaugh, and Jones, and which accounts had been allowed...
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