Hartman v. Corpening., (No. 8060)

Citation116 W.Va. 31
Decision Date05 February 1935
Docket Number(No. 8060)
CourtSupreme Court of West Virginia
PartiesMary A. Hartman v. D. Frank Corpening et al.

1. Appeal and Error

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

2. Assignments

A chose in action may be validly assigned.

3. Assignments

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. Execution

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, for plaintiff in error.

Fred L. Shinn and Powell & Clifford, 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 $150.00 with interest and costs. Glaspell was represented in that action by Powell and Clifford, attorneys. (2) Glaspell sued Frank D. Corpening before a justice on October 9, 1933, for $300.00. On October 16, 1933, Glaspell assigned to Powell and Clifford his claim against Corpening. A part of the consideration for the assignment was the payment of the fee due Powell and 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 the 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 suggestion. Since that execution was the one upon which the suggestion was based and is the only one referred to in the record of this proceeding, we...

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14 cases
  • State ex rel. Frieson v. Isner
    • United States
    • Supreme Court of West Virginia
    • December 18, 1981
    ... ... Woodie FRIESON ... Robert A. ISNER, Magistrate, et al ... No. 15109 ... Supreme Court of Appeals of West Virginia ... Dec. 18, ... 146, 39 S.E.2d 321 (1946); Hartman v. Corpening, 116 W.Va. 31, 178 S.E. 430 (1935); Wilt v. Huffman, 46 ... ...
  • Strahin v. Sullivan
    • United States
    • Supreme Court of West Virginia
    • February 21, 2007
    ... ... No. 33091 ... Supreme Court of Appeals of West Virginia ... Submitted ... "`A chose in action may be validly assigned.' Syl. pt. 2, Hartman v. Corpening, 116 W.Va. 31, 178 S.E. 430 (1935)." Syllabus Point 3, ... ...
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    • United States
    • Supreme Court of West Virginia
    • July 1, 1947
  • State Of West Va. v. McCauley, (No. 9924)
    • United States
    • Supreme Court of West Virginia
    • July 1, 1947
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