Jackson v. Hamm

• Decision Date: 20 January 1890
• Citation: Jackson v. Hamm, 14 Colo. 58, 23 P. 88 (Colo. 1890)
• Parties: JACKSON v. HAMM.
• Court: Colorado Supreme Court

23 P. 88

14 Colo. 58

JACKSON v. HAMM.

Supreme Court of Colorado

January 20, 1890

Appeal from Chaffee county court.

Syllabus by the Court

1. Notice to the debtor by the assignee of a chose in action is not necessary to complete the assignment, where there is no controversy between different assignees or attaching creditors of the fund assigned.

2. The assignee of a claim against the receiver of a railway company, having obtained permission from the proper court may, under the Code, bring suit in his own name, and, though the assignment be indorsed to another, he may still maintain the action in his own name so long as he retains possession of the instrument of assignment, and may cause the record to be amended by adding the name of the indorsee as the use party, who will thereafter be entitled to control the proceedings, and will be bound by the judgment.

E O. Wolcott and Watson & Libby, for appellant.

J W. Hamm, for appellee.

ELLIOTT J.

This action was commenced by John W. Hamm, as plaintiff, against William S. Jackson, as receiver of the Denver & Rio Grande Railway Company, before a justice of the peace, to recover a certain sum of money due to one E. D. Lynch, an employe of said railway company, for services. Lynch had assigned his claim to plaintiff, as follows: 'Salida, Colo., February 27, 1886. J. W. Gilluly, Esq., Cashier D. & R. G. Ry. Co., Denver, Colo.: Please pay, or cause to be paid, to John W. Hamm, the sum of seventy-five dollars and fifty cents, the amount due to me by said railroad company for services; and this shall be your receipt for same in full. E. D. LYNCH.' Judgment for the amount of the claim was rendered in the justice's court in favor of plaintiff. The defendant appealed to the county court, where the same judgment was again rendered. Defendant now appeals to this court.

That Jackson was the receiver of the railway company, that Gilluly was its cashier and disbursing agent, that the wages were due to Lynch as sued for, and that Lynch assigned his claim to plaintiff, are in no way controverted by the brief and argument of appellant under its assignment of errors. Gilluly refused payment to Lynch on the ground that he had not paid his board-bill to one A. L. Dodge; but it does not appear that the supposed indebtedness of Lynch for board was in any way connected with his contract or claim for services, or that there had been any garnishment proceedings therefor. This defense was not attempted at the trial. No evidence was offered in behalf of defendant in either court, and nothing is claimed on this ground upon this appeal. It is urged however, by appellant's counsel, that, as there is nothing in the record to show that the receiver had notice of the assignment of Lynch's claim to plaintiff before the bringing of this suit, therefore the assignment was not complete, and that this action cannot be maintained. If this were a controversy between different assignees or attaching creditors of the same chose in action, this point might require greater consideration. So, also, this appeal might be more difficult of determination but for the fact that the assignment of errors is restricted to the grounds stated in the motions to dismiss and for nonsuit, respectively, and that even some of these grounds are abandoned in the brief and argument of counsel. Neither of the aforesaid motions question the sufficiency of the evidence generally, nor the merits of the claim sued on, as above stated. Smith v. Christian, 47 Cal. 18; 2 White & T. Lead. Cas. 794 et seq.; Clodfelter v. Cox, 1 Sneed, 330; Moore v. Gravelot, 3 Ill.App. 442. In this action there are no third parties making claim to this fund, nor did defendant interpose any defense of that kind. Besides, plaintiff had given notice of the assignment to Gilluly, the financial agent of the railway company, before the commencement of the action, who made no objection thereto, except that...