Humphreys County v. Cashin

• Decision Date: 03 November 1924
• Docket Number: 24380
• Court: Mississippi Supreme Court
• Parties: HUMPHREYS COUNTY et al. v. CASHIN et al. [*]

101 So. 571

136 Miss. 476

HUMPHREYS COUNTY et al. v. CASHIN et al. ^[*]

No. 24380

Supreme Court of Mississippi

November 3, 1924

Division A

1 INJUNCTION. County's suit to enjoin prosecution of mandamus or in alternative for judgment on indemnity bond held within jurisdiction of equity.

Where appellant assigned to sureties a judgment in his favor against a county, and, on reversal of such Judgment and recovery of another judgment, assigned it to his wife, equity had jurisdiction of county's action to enjoin wife from prosecuting mandamus suit to compel payment, and in alternative for relief against sureties to whom it had paid judgment on their indemnity bond, in which sureties filed cross-bill, claiming proceeds of such judgment, the entire controversy involving proceeds of; such judgment.

2 JUDGMENT. Assignees of judgment held entitled to proceeds of second judgment recovered, following reversal of assigned judgment.

Where appellant assigned a judgment in his favor, pending appeal therefrom on reversal of assigned judgment and appellants' recovery of another judgment on subsequent trial, assignees were entitled to proceeds of second judgment, at least in court of chancery.

3 JUDGMENT. Assignment to sureties on appeal bond, of judgment in another case, construed.

Appellant's assignment to sureties on his appeal bond, of judgment in his favor in another action authorizing sureties "to collect same in event said decree be affirmed," held to entitle sureties to collect judgment in full before expending money as sureties, and to account merely for any excess.

4 INJUNCTION. Prosecution of mandamus proceedings can be restrained.

The prosecution of mandamus proceedings prior to rendition of judgment therein can be restrained by injunction.

HON. E. N. THOMAS, Chancellor.

APPEAL from chancery court of Humphreys county, HON. E. N. THOMAS, Chancellor.

Bill by Humphreys county against J. M. Cashin and wife and S. Castleman and wife, in which last-named defendants filed cross-bill. From a decree dismissing original bill and cross-bill, plaintiff appeals, and last-named defendants cross appeal. Reversed and remanded on direct and on cross appeal.

See, also, 128 Miss. 236, 90 So. 888, and 96 So. 316.

Reversed and remanded on direct and cross appeal.

Montgomery & Montgomery, for appellant.

The remedy of Humphreys county at law is inadequate, and equity has jurisdiction of this cause to enforce the rights of a county which has paid a judgment to the legal or equitable assignees thereof -- the very uncertainty of the status of the assignees itself affording equitable jurisdiction.

We would like to call the attention of the court to the entirely unsatisfactory, if not altogether hopeless position of Humphreys county--outside of the relief sought in chancery. If this injunction suit cannot be maintained by Humphreys county, then let us see what follows. The mandamus suit of Mrs. Cashin in the circuit court of Humphreys county would come on for trial. The Castlemans are not parties to this mandamus suit. Without the consent of the plaintiff there--which would not be given, of course--the Castlemans could not come into the law court at all and make their defense. If, however, in some way the Castlemans were permitted to come into the law court, then at the first blow all of their rights as equitable assignees of the two thousand dollar judgment would be lost. It would become simply a cold question of law whether as a legal proposition the assignment of the three thousand five hundred dollar judgment carried with it the cause of action upon which it was based, and was therefore a legal assignment of the second judgment for two thousand dollars. Neither Humphreys county nor the Castlemans could show in the action at law that the Castlemans were the equitable assignees of the two thousand dollar judgment, and that payment to the Castlemans was accordingly a good discharge of the said judgment.

So suppose as a matter of fact that Eugenia C. Cashin were permitted to go ahead and collect through this suit at law this two thousand dollar judgment from Humphreys county. Then Humphreys county would be compelled, of course, to file suit against the Castlemans and the sureties upon the indemnity bond furnished to the county by the Castlemans. It would be idle to say that Humphreys county could not do this. Regardless of how voluntary the payment of this two thousand dollar judgment by the county to the Castlemans might be construed to be--going upon the theory that the Castlemans had no claim under the assignment of the three thousand five hundred dollar judgment to the proceeds of the later judgment for two thousand dollars -- still on the indemnity bond, which constitutes an express agreement to repay, Humphreys county could predicate a suit against the Castlemans.

On the subject of "Payment," and recovery of voluntary payment, see 30 Cyc., Payment, 1302. Then the Castlemans, having been made to repay this money to Humphreys county could sue J. M. Cashin for breach of the warranty in his assignment of the three thousand five hundred dollar judgment, on the theory that the consideration for the assignment had failed and the warranties to the contrary had been breached. Lile v. Hopkins, 12 S. & M. 299.

And then, after the Castlemans recovered judgment against J. M. Cashin, how much better off would they be? The judgment roll of Humphreys county now has two judgments against J. M. Cashin, both of which are unsatisfied. In fact, the bill charges that the financial rating and credit of the said J. M. Cashin was at a very low ebb at the time the Castlemans befriended him by signing as sureties the five thousand dollar supersedeas bond.

Furthermore, Humphreys county realizes that after all it may be held that the Castlemans are only equitable assignees of this two thousand dollar judgment. If such were the final holding in the law court--in the mandamus suit--then Humphreys county would lose there. If such were the holding, then when the county sued the Castlemans on the indemnity bond, the Castlemans might be held to be the legal assignees of the two thousand dollar judgment, as the first suit would not be res adjudicata of the second -- the two suits not being between the same parties. In such event, Humphreys county would certainly be encumbered with two suits instead of one, and the suits not being between the same parties, the judgment of one would not necessarily be binding in the other. And, again, it matters not how these two suits came out, if the Castlemans had to sue J. M. Cashin for breach of warranty, the judgments in the first two suits would not be binding upon J. M. Cashin, and the result might not be consistent with that of the first two suits.

In short, to rectify the situation, it is easy to see that three suits would be necessary. In no two of these suits would the parties be the same. Some would be brought in one county, and some in another. Different witnesses would probably be used. Consequently, inconsistent results not only might, but probably would, result from this circuitous litigation.

The fact that the status of the ownership of this two thousand dollar judgment by the Castlemans is uncertain--that is, whether the Castlemans are the legal owners or the equitable owners thereof--this very thing makes the right of Humphreys county inadequate in a court of law. 5 C. J. 560, sec. 147 and note; Tritt v. Colwell, 31 Pa. 228.

After reviewing the surrounding facts and circumstances under which the assignment in question was executed, it is evident that the purpose of the assignment was to make the Castlemans the owners of this latter two thousand dollar judgment, to the extent necessary to protect themselves against liability under the five thousand dollars supersedeas bond. We want to give the court the full benefit of our investigation of the law of assignments. The question is an open one in Mississippi. Humphreys county, in its claim of payment by reason of payment to the assignees, could and would have a larger and more available defense if such defense were urged and set up in a court of equity. We confidently believe that this court will come to the same conclusion, and we will accordingly survey the whole question--which survey shows, in our judgment, that the Castlemans are probably the legal assignees of this two thousand dollar judgment, and that under all pertinent authorities the Castlemans are at least, the equitable assignees of this two thousand dollar judgment, and are the parties who are, in equity, entitled to the fruits thereof. Accordingly, payment to such assignees constitutes, in equity, a complete discharge of the judgment.

I. Rights at law under the assignment as presently drawn.

(a) The great majority holding is that an assignment of a judgment carries with it the cause of action upon which the judgment is based, and hence the Castlemans are the legal assignees of this two thousand dollar judgment. (1) "It is a general principle that the absolute assignment of a judgment passes to the assignee every remedy and security which the assignor had for the enforcement of the judgment." (Many cases cited to support.) "Of course the assignment of a judgment carries the debt on which the judgment is based." See note in 7 A. & Eng. Ann Cases, 423-424. (2) 15 R. C. L. 777-778, sec. 230. (3) "Rights and Liabilities of Assignee of a Judgment. 23 Cyc. 1419-1420C. Rights and Liabilities of Parties. (4) "Assignment of Judgment--as an incident to the assignment of a judgment, the claim upon which the judgment is founded, and all remedies incident thereto, pass by the assignment." 5 C. J., secs. 129, 951, Assignments. (5) 2 Freeman on Judgments, sec. 431; 1 L. R. A. (N. S.) 150, note. (6)...