May ex rel. LaCkland v. Kellar

• Decision Date: 07 March 1876
• Parties: ROBERT A. MAY, to use of HENRY C. LACKLAND et al., Respondent, v. JOHN A. KELLAR et al., Appellants.
• Court: Missouri Court of Appeals

1 Mo.App. 381

ROBERT A. MAY, to use of HENRY C. LACKLAND et al., Respondent,

v.JOHN A. KELLAR et al., Appellants.

St. Louis Court of Appeals, Missouri.

Mar. 7, 1876.

1. A judgment in a proceeding for unlawful detainer may be assigned.

2. M. obtained judgment against K., which judgment he assigned to L.; the assignee sued the sureties on the appeal bond; one of the sureties offered to offset, in this suit, a judgment against the assignor of the bond sued on, owned by him. Held, that the suit on the appeal bond was for unliquidated damages, and a set-off was not admissible.

3. On motion for rehearing, this court will not notice an informality in the judgment which does not affect the substantial rights of the parties.

APPEAL from St. Charles Circuit Court.

Affirmed.

John A. Kellar, with Taylor & Whitney, for appellants, cited: 2 Pars. on Con. 515; Broom's Leg. Max. 626; City of St. Louis v. Laughlin, 49 Mo. 559; Mortland v. Hill et al., 44 Mo. 58; Covenant Mutual Life Ins. Co. v. Clover, 36 Mo. 392; Love v. Fairfield, 13 Mo. 300.

Lackland & Broadhead, for respondent, cited: Wag. Stat. 794, secs. 34-38, p. 1273, sec. 1, p. 1275, secs. 10, 11; Burgess v. Cave, 52 Mo. 43; State, to use, v. Modrell et al., 15 Mo. 421; McPherson v. Meek, 30 Mo. 345; Johnson v. Jones, 16 Mo. 494; Mahan v. Ross, 18 Mo. 121; Pratt v. Menkins, 18 Mo. 158; Brake v. Corning, 19 Mo. 125; Basye v. Ambrose, 28 Mo. 39; Hammer v. Bridenbach, 31 Mo. 49; Long v. Towl, 42 Mo. 545; Morse v. Rathburn, 42 Mo, 595; Hammacher, Admr., v. Schroers, 49 Mo. 406.

BAKEWELL, J., delivered the opinion of the court.

This is a suit on an appeal bond executed by defendant Luckett, as principal, and the other defendants, as sureties, conditioned according to the terms of the statute, on appeal taken to the Supreme Court from the judgment of the Circuit Court of St. Charles county, in the case of May v. Luckett. The pleadings, evidence, and admissions in the case show the following state of facts:

Robert A. May obtained judgment against Robert F. Luckett, in a proceeding of unlawful detainer. The judgment was for restitution of possession, damages $270, and monthly rents and profits $10, from April 3, 1872, the date of the judgment, until restitution made, and for costs. On the day judgment was rendered it was assigned by May to Lackland & Broadhead, his attorneys--first, to secure their fees, and then to secure advances made by Lackland & Broadhead to May. Appeal was taken by Luckett, and the proper bond given, with the usual condition. This suit is on that bond. On appeal, the judgment of the Circuit Court was affirmed. Execution was issued on February 3, 1874, in the name of May, to the use of Lackland & Broadhead. One Allen was, on February 19, 1874, by direction of Lackland & Broadhead, put into possession of the premises, under said execution, which was then returned unsatisfied as to damages, etc., Luckett being insolvent. On March 19, 1872, William J. McElhiney assigned to Robert F. Luckett a judgment which he had previously obtained in the Circuit Court of St. Charles county, against May, for the sum of $1,338.35. Of this assignment Lackland & Broadhead knew nothing when May assigned to them. This judgment of McElhiney against May, assigned to Luckett, is set up in defendants' answer as matter of defense. Plaintiffs claim that their demand, being for unliquidated damages, is not subject to set-off, and the record of this judgment and assignment was, when offered by defendant, excluded by the court at the objection of plaintiffs. There was a verdict and judgment for plaintiffs for $643.32. Motions for a new trial and in arrest of judgment were made and overruled, and, all exceptions being saved, the case is brought here by appeal.

It is claimed by appellants (and the points are all saved by the refusal of instructions asked by defendant, and by objections to evidence overruled on the trial, and are the only points insisted upon here):

1. That the judgment of May v. Luckett was not assignable under our statute.

2. That the bond sued on is another and different bond from that assigned.

3. That the court below erred in refusing to allow defendants to read in evidence the judgment against May, owned by Luckett.

1. The statute provides (Wag. Stat. 794, sec. 34) that judgments for the recovery of money may be assigned in writing, which assignment shall be attached to the judgment and attested by the clerk.

The judgment in question was not assigned as required by the statute; but the assignment was good as an equitable assignment (if the judgment could be assigned at all), for the statutory mode of assigning judgments is cumulative, and does not prevent a party from making an equitable assignment in any other lawful way. Burgess v. Cave, 52 Mo. 43.

But could this judgment be assigned at all? It is said that, “judgments for the recovery of money” being named in the statute, by a familiar rule, the expression of the one thing is the exclusion of another; and that a judgment is an entirety, and cannot be assigned in part.

A judgment is, undoubtedly, an entirety; a judgment against A and B cannot be set aside as to A and maintained as to B. It either stands or falls as to both, and, in this sense, cannot be divided. But it by no means follows that part of a judgment cannot, in the nature of things, be assigned. It is true that part of a judgment cannot, in this State, be assigned without the consent of the debtor. Love v. Fairfield, 13 Mo. 300. This is for the protection of the debtor--against whom, otherwise, a hundred executions might issue for $1 each, with costs--and to prevent litigation, and from motives of public policy. But semble that, with the consent of the debtor, a part of a judgment might be assigned. But in this case the question does not properly arise, because the whole of the judgment was assigned, and the representative of the assignees was, under the execution, put into possession of the ground. Part of a judgment cannot be assigned to one man, and part to another, without consent of the debtor, for the reasons given above; but those reasons do not furnish grounds for saying that a judgment for possession and for money may not be assigned to one assignee. The judgment is a judgment for the recovery of money. That may be assigned; the statute expressly so declares. But it cannot be assigned without also assigning the judgment for possession, which is part of the same decree,...