Reed v. Occidental Building & Loan Association

• Decision Date: 18 March 1932
• Docket Number: 28119
• Citation: 241 N.W. 769,122 Neb. 817
• Parties: GERTRUDE D. REED, APPELLANT, v. OCCIDENTAL BUILDING & LOAN ASSOCIATION ET AL., APPELLEES
• Court: Nebraska Supreme Court

241 N.W. 769

122 Neb. 817

GERTRUDE D. REED, APPELLANT, v. OCCIDENTAL BUILDING & LOAN ASSOCIATION ET AL., APPELLEES

No. 28119

Supreme Court of Nebraska

March 18, 1932

APPEAL from the district court for Lancaster county: JEFFERSON H BROADY and LINCOLN FROST, JUDGES. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. An assignment of a judgment given in consideration of " one-third of the original judgment, to be paid when the judgment is collected, or for one-third of the amount collected, if less than the original judgment is accepted in settlement," and authorizing the assignee to collect said judgment at the risk and expense of said assignee, is an assignment for collection only, and not a sale of the judgment.

2. Where it appears upon the face of the petition that a judgment sued on has become dormant, and has not been revived, the petition fails to state a cause of action, and is subject to general demurrer.

3. To state a cause of action for fraud or conspiracy to defraud it is necessary for the pleader to allege not only the conspiracy and the doing of the fraudulent acts, but also facts showing that damage resulted therefrom.

Appeal from District Court, Lancaster County; Broady and Frost, Judges.

Action by Gertrude D. Reed against the Occidental Building & Loan Association and another. From a judgment dismissing the petition, plaintiff appeals.

Affirmed.

Gertrude D. Reed, pro se.

Ellery H. Westerfield, Claude S. Wilson, Roy F. Gilkeson and Hymen Rosenberg, contra.

Heard before ROSE, GOOD and EBERLY, JJ., and CARTER and CHASE, District Judges.

OPINION

CARTER, District Judge.

This is a case brought in the district court for Lancaster county by the plaintiff, appellant herein, against Trevelyan E. Gillaspie and the Occidental Building & Loan Association, defendants and appellees herein, alleging that on September 18, 1918, the defendant Occidental Building & Loan Association recovered a judgment in the district court for Lancaster county against the defendant Trevelyan E. Gillaspie, in the sum of $ 1,126.57 with interest at the rate of 10 per cent. per annum from the date of said judgment; that on December 22, 1920, the defendant Occidental Building & Loan Association assigned said judgment in writing to the plaintiff Gertrude D. Reed; that said assignment was placed of record on September 5, 1925, and that the defendant Gillaspie had actual knowledge of said assignment on and after its execution; that after the recording of said assignment, with full knowledge of the same by the defendant Gillaspie, the Occidental Building & Loan Association executed and delivered to said Gillaspie a release of said judgment which was filed with the clerk of the district court for Lancaster county on September 1, 1929.

Plaintiff further alleges that the defendants Gillaspie and the Occidental Building & Loan Association secretly conspired together to release said judgment and to prevent plaintiff from enforcing said judgment against the defendant Gillaspie; that pursuant to said conspiracy the Occidental Building & Loan Association, without the consent or knowledge of the plaintiff, and without paying plaintiff the amount she was entitled to recover by virtue of said assignment, executed and delivered the release of judgment hereinbefore mentioned.

Plaintiff further alleges that said judgment became dormant in September, 1923; that defendant knew that plaintiff was endeavoring to locate property subject to execution belonging to Gillaspie; that she had made preparation to revive said judgment, and that she would enforce said judgment against the defendant Gillaspie. Plaintiff thereupon prayed for judgment for damages against both defendants in the sum of $ 1,126.57 and interest and costs.

From the judgment of the lower court sustaining a general demurrer and dismissing plaintiff's petition, the plaintiff appeals.

The assignment through which the plaintiff claims a right in the original judgment is as follows: "For one-third of the original judgment, to be paid me when the judgment is collected, or for one-third of the amount collected, if less than the original judgment is accepted in settlement, I hereby assign to Gertrude D. Reed, all rights and interests in and to the judgment recovered in the action, the Occidental Building & Loan Association of Omaha v. Trevelyan Gillaspie, docket 61, page 197, district court for Lancaster county, Nebraska, for $ 1,126.57.

"And hereby authorize said assignee to collect said judgment with interest and costs from date of judgment.

"All said proceedings to be at the risk and expense of said assignee.

"Dated this 22d day of December, 1920.

"Occidental Bldg. & Loan Ass'n.

"R. A. McEachron, V. P."

It is difficult for the court to determine in this case, whether or not the petition is based upon the judgment hereinbefore mentioned, or whether it is intended as an action for fraud. In either event the court has come to the conclusion that the demurrer to the petition was properly sustained by the trial court.

If the theory of the plaintiff was that it is a suit upon the judgment of September 18, 1918, she cannot recover for the reason that the statute of limitations is a bar to a recovery thereon. Section 20-1515, Comp. St. 1929, is as follows "If execution shall not be sued out within five years from the date of any judgment that now is or may hereafter be rendered in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment and all taxable costs...