Hartman v. Corp.Ening

• Decision Date: 05 February 1935
• Docket Number: No. 8060.,8060.
• Citation: 178 S.E. 430
• Court: West Virginia Supreme Court
• Parties: HARTMAN. v. CORPENING et al.

178 S.E. 430

HARTMAN.

v.CORPENING et al.

No. 8060.

Supreme Court of Appeals of West Virginia.

Feb. 5, 1935.

Syllabus by the Court.

1. On error, the appellate review of a ruling of the circuit court is limited to the very record made there.

2. A chose in action may be validly assigned.

3. When a chose in action is validly assigned, the right of the assignee thereto is superior to that of the assignor's prior judgment creditor upon an execution issued after the assignment.

4. The lien of a perfected execution is both immediate and progressive, but not retroactive.

Error to Circuit Court, Harrison County.

Proceeding by Mary A. Hartman against D. Frank Corpening and others. Judgment for defendants, and plaintiff brings error.

Affirmed.

W. M. Conaway, of Clarksburg, for plaintiff in error.

Fred L. Shinn and Powell & Clifford, all of Clarksburg, for defendants in error.

HATCHER, Judge.

This case involves the priority between the lien of an execution and an assignment The circuit court ruled in favor of the assignment, and the suggestor prosecutes error.

The record presents the following facts on the issue herein: (1) Mary A. Hartman secured a judgment against E. C. Glaspell et al. on January 27, 1931, for $150 with interest and costs. Glaspell was represented in that action by Powell & Clifford, attorneys. (2) Glaspell sued Frank D. Corpening before a justice on October 9, 1933, for $300. On October 16, 1933. Glaspell assigned to Powell & Clifford his claim against Corpening. A part of the consideration for the assignment was the payment of the fee due Powell & Clifford for representing Glaspell in his suit with Mrs. Hartman. Glaspell's action against Corpening was appealed to the circuit court, where it resulted in a judgment in favor of Glaspell on February 10, 1934, for $275.62 and costs. (3) Prior thereto, to wit on February 3, 1934, Mrs. Hartman had an execution (on her judgment of January 27, 1931) issued against Glaspell, and then filed a suggestion alleging that tlie lien of that execution attached to the indebtedness of Corpening to Glaspell. The summons on the suggestion was served on Corpening February 16, 1934.

Both the petition and brief of Mrs. Hartman herein refer to and rely upon an alleged execution on her judgment issued September 4, 1931. That execution is not in the record. When her counsel's attention was called thereto in this court, he replied: "The presumption is that the court (circuit) has judicial knowledge of the records in its court In this case the court had access to the original files, the judgment, and process and papers issued therein. My information is that he went over all, as he had his clerk to produce them for him. However in proof of my contention I am forwarding attested copy" (of the execution dated September 4, 1931).

This proceeding was submitted on an agreed statement of facts. That statement stipulates merely that Mrs. Hartman "entered" the suggestion against Corpening on February 3, 1934, and files therewith the writ of suggestion as an exhibit. That writ refers to an execution "now in the hands of the sheriff" as fixing the liability of Corpening. The only execution then with the sheriff was that of February 3, 1934, and that execution (only) is attached to the writ of...