Leighton v. Serveson

• Decision Date: 07 April 1896
• Citation: 66 N.W. 938,8 S.D. 350
• Parties: WILLIAM LEIGHTON, Plaintiff and respondent, v. JAMES SERVESON, et al. Defendants, and George W. Corkings, Defendant and appellant.
• Court: South Dakota Supreme Court

8 S.D. 350

66 N.W. 938

WILLIAM LEIGHTON, Plaintiff and respondent,

v.

JAMES SERVESON, et al. Defendants, and George W. Corkings, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Sanborn County, SD Hon. D. Haney, Judge Affirmed N. B. Reed, T. H. Null Attorneys for appellant. S. A. Ramsey Attorney for respondent. Opinion filed April 7, 1896

FULLER, J.

In justice court plaintiff obtained a judgment for $68.50 against the defendant Serveson, who appealed therefrom to the circuit court, where said judgment was affirmed. Plaintiff’s attorney herein, S. A. Ramsey, Esq., had at all times exclusive charge of the above mentioned cause, and before the commencement of this action against Serveson, as principal, and Corkings and McAuley, as sureties, upon the undertaking on appeal from the judgment obtained in justice court, an attorney’s lien for $33 was by said Ramsey perfected and made effectual against the judgment debtor, by filing the same as provided by Subdivision 4 of Sec. 470 of the Compiled Laws. Plaintiff had judgment below, and the defendant Corkings apipeals.

During the pendency of this action in the trial court, and long after the filing of the attorney’s lien above mentioned, and apparently with actual notice thereof, the defendant Corkings obtained an assignment of plaintiff’s interest in the judgment existing against the defendant Severson, and by leave of court filed a supplemental answer in which such assignment was averred, and in which a dismissal of the cause was demanded, together with a judgment for costs, against plaintiff, accruing in this action subsequently to plaintiff’s assignment of his interest as a judgment creditor of Serveson. A motion to substitute Corkings as a party plaintiff in the action upon the grounds mentioned in his supplemental answer, was properly overruled. By filing his lien for attorney’s fees Ramsey became, as against the judgment debtor, and in equity, the assignee and owner of an interest in the judgment and cause of action upon the undertaking, which was not divested nor affected by the assignment of plaintiff’s interest therein. Clark v. Sullivan, (ND) 55 N.W. 733. The assignment of plaintiff’s interest in the judgment to the defendant Corkings neither relieved the judgment debtor nor his sureties from their liability to Ramsey. He still remained a party in interest, and it was within the power of the court to permit the action to...