Heyer v. Kaufenberg

• Decision Date: 28 May 1929
• Docket Number: 1544
• Citation: 40 Wyo. 367,277 P. 711
• Parties: HEYER v. KAUFENBERG [*]
• Court: Wyoming Supreme Court

277 P. 711

40 Wyo. 367

HEYER v. KAUFENBERG ^[*]

No. 1544

Supreme Court of Wyoming

May 28, 1929

APPEAL from District Court, Fremont County; EDGAR H. FOURT, Judge.

Action by A. O. Heyer against John Kaufenberg and the Massachusetts Bonding & Insurance Company. Judgment for plaintiff, and defendant insurance company appeals.

Affirmed.

The cause was submitted for the defendant and appellant on the brief of A. C. Allen and O. N. Gibson of Riverton.

The plaintiff Heyer assigned his interests in the judgments to John R. Staby. Heyer thereafter instituted this suit for damages on the injunction bond, that had been executed for the benefit of Heyer; by virtue of his assignment of the judgment every security and incident existing in his favor by reason of the judgment was passed under his assignment of the judgment and he therefore retained no interest in the judgment or in any lien or securities incident thereto. Schlieman v. Bowlin, (Minn.) 30 N.W. 879; Meyer v. Jones, (Cal.) 163 P. 67, and cases cited. 34 C. J 650, 651; 2 R. C. L. 633, 634. The assignment of Heyer to Staby was without reservation of any kind or character, and when made ended his right to sue on any bond or security given in the litigation of the said causes of action. 5 C. J 948, 949. The judgment of the District Court should be reversed with directions to dismiss plaintiffs cause of action.

The cause was submitted by respondent on the brief of M. C. Burk of Riverton.

The assignments of the judgments from Heyer to Staby contained no reference to the injunction bond or any rights growing out of it, consequently plaintiff retained his right of action upon the injunction bond. The authorities cited by appellant merely go to the point that all incidents of the judgment available as security for its payment, pass with an assignment of the judgment, and with that rule we agree. But a right of action upon an injunction bond is a personal liability with damages sustained or expenses incurred by reason of the wrongful assignments of the injunctional order but gives no additional remedy for the enforcement of the judgment itself. Therefore, the authorities cited by appellant are not in point. Crist v. McDaniel, 82 P. 991; Conoway v. Carnall, 224 P. 525. Only such rights or liens as in a legal sense constitute security for the debt, pass with the general assignment of a judgment. Commonwealth v. Wampler, 51 S.E. 737, 1 L. R. A. (N. S.) 149; Forrest v. O'Donnell, 4 N.W. 259; Burgett v. Paxton, 15 Ill.App. 379; Moore v. Lochmund, 117 P. 1123; Minnock v. Welles, 21 P. 787; Silcox v. Lang, 20 P. 297; Smith v. Atkinson, 32 P. 425. The assignee of the judgment has no interest in the damage incurred by Heyer in the payment of attorney's fees to secure the dissolution of injunction brought to enjoin the sale of property to collect the judgment. The right of action on the bond is separate and distinct from the judgment assigned, and must be disposed of on its merits between the parties thereto.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This is a proceeding by direct appeal to review a judgment of the District Court of Fremont County in favor of A. O. Heyer, respondent here and plaintiff below. The appellant Massachusetts Bonding and Insurance Company, hereinafter, for convenience, mentioned as the "Bonding Company," was the only defendant served with process in the District Court and the only party making a defense to the action.

The facts upon which the sole question presented by the briefs of the parties arises, appear to be these: On the 16th and 17th of February, 1927, the respondent Heyer obtained two judgments in his favor in the District Court of Fremont County, Wyoming. One of these judgments was rendered in case No. 4009 for $ 1,099.95 and costs, and the other in case No. 4010 for $ 851.65. The judgment defendants in each case were the same, being named as "Wyoming Syndicate, a voluntary association, and C. E. Nelson." On February 17, 1927, in a suit also brought in said District Court by one John Kaufenberg (the named defendant who was not served with process in the instant case) and other persons against C. E. Nelson and others and numbered 4035, an order was entered appointing a receiver of certain property. Thereafter executions were procured by Heyer to be issued upon the two judgments aforesaid. The levies under these executions were made upon some of the property in the possession of the receiver and notices of the sale thereof were published, said sale being advertised to take place on March 1st, 1927. Before the sale was held, however, on the application of the receiver in case No. 4035, a restraining order was issued on March 1, 1927 by the District Court Commissioner, enjoining the sheriff of Fremont County from further proceeding under the executions aforesaid until the further order of the court, providing the plaintiffs filed a bond in the sum of $ 500 with specified conditions and procured its approval by the clerk of said court. Pursuant to this order, a bond was filed and approved by the clerk, signed by the Bonding Company and the attorney for the plaintiffs, the condition of the obligation being that the plaintiffs, as principals, and the Bonding Company, as surety, undertook to A. O. Heyer, execution creditor in cases Nos. 4009 and 4010 already mentioned, in the sum of $ 500, that "said plaintiffs shall pay to him all damages which he may sustain if it be finally decided that the injunction ought not to have been granted."

Thereafter a motion to dissolve the restraining order was filed by Heyer, but before it could be argued, the cause was removed to the United States District Court for the District of Wyoming. Subsequently, after the motion to dissolve had been heard, the Federal Court, on August 3, 1927, by order duly made, dissolved the restraining order aforesaid.

On August 23, 1927, Heyer assigned to one John R. Slaby all the former's "right, title and interest" in the two judgments rendered as above stated, "without recourse," except as to Heyer's good faith to sell and transfer the same. October 14, 1927, Heyer brought this action upon the injunction bond given to secure the restraining order as already recited, to recover damages alleged to have been sustained by him in procuring the dissolution of that order. These damages, as claimed, consisted of the expenses and attorney's fees incurred by Heyer in obtaining that result. The Bonding Company disclaimed liability, setting up the defense that Heyer could not maintain an action upon the bond, as he no longer had any interest therein, because of his assignments of the judgments to Slaby.

The case was tried to the court without a jury. Other than the assignments by Heyer to Slaby, the Bonding Company introduced no evidence. The court found generally in favor of Heyer and against the Bonding Company and made special findings to the effect that the latter executed and delivered the injunction bond in suit, that it "did not pass by assignment of the judgments which were restrained;" and that plaintiff was entitled to recover his damages for counsel fees and expense in securing the dissolution of the restraining order. Upon these findings judgment was accordingly entered against the surety for the sum of $ 300 and costs.

Though the assignments do not by their terms refer in any way to the injunction bond or the rights accruing thereunder to Heyer by reason of the dissolution of the restraining order, it is contended for the Bonding Company that by executing and delivering these instruments to Slaby, Heyer divested himself of any right to sue on the bond. Our attention is directed to 2 R. C. L. 633, 634, where it is said:

"The assignment of a debt ordinarily carries with it all liens, and every remedy or security that could have been used, or made available, by the assignor as a means of indemnity or payment, although they are not specifically named in the instrument of assignment, and although the assignment is not by any instrument in writing. In the absence of any provision to the contrary, the unqualified assignment of a chose in action vests in the assignee an equitable title to all such securities and rights as are incidental to the subject matter of the assignment; and he may enforce them although the assignee at the time was ignorant of their existence."

However, immediately following this language the same text proceeds to say:

"To pass as an incident of an assignment, the right must be more than a mere collateral right of action, such as that which may exist in behalf of the assignor against a public officer for failing to discharge an official duty where his misconduct affected the value of the chose assigned."

34 C J. 650, 651, and 5 C. J. 949, are also cited and are substantially to the same effect as the quotation first above made from Ruling Case Law. The only cases referred to in the brief of appellant are: Schlieman v. Bowlin, 36 Minn. 198, 30 N.W. 879, which held that the assignment of a judgment against a defendant in a replevin suit operated as an assignment of a bond given by him to obtain a return of the property, the court saying in the course of its discussion of the matter: "The right to collect the judgment on execution and the right to recover on the bond which is merely security for the judgment, cannot exist in the hands of different persons:" and Meyer v. Jones, 32 Cal.App. 378, 163 P. 67, which decided that sureties on an undertaking for the release of an attachment, a judgment in the action having been assigned to the plaintiff without mention being made of a transfer of any right or benefit of the undertaking, were liable to the plaintiff thereon, and concluding its review of the point the court sai...