Reilly v. Russell

• Decision Date: 31 October 1866
• Citation: 39 Mo. 152
• Parties: JAMES M. REILLY, ADMINISTRATOR OF THE ESTATE OF WILLIAM BENNETT, DEC'D, Plaintiff in Error, v. ADALINE RUSSELL, EXECUTRIX OF THE ESTATE OF SAMUEL RUSSELL, DEC'D, Defendant in Error.
• Court: Missouri Supreme Court

39 Mo. 152

JAMES M. REILLY, ADMINISTRATOR OF THE ESTATE OF WILLIAM BENNETT, DEC'D, Plaintiff in Error,

v.ADALINE RUSSELL, EXECUTRIX OF THE ESTATE OF SAMUEL RUSSELL, DEC'D, Defendant in Error.

Supreme Court of Missouri.

October Term, 1866.

Error to St. Louis Circuit Court.

Casselberry, for plaintiff in error.

I. We contend that the numerous persons who claim an interest in the

judgment are not assignees in law or equity, because a part of a judgment or part of a chose in action cannot be assigned in law or equity so as to enable the assignee to sue. The reason is given by the court in case of Love v. Fairfield, 13 Mo. 300, and by the Supreme Court of the United States in the case of Mandeville v. Welch, 5 Wheat. 277.

The pretended assignments specified in the record amount at best to a mere equitable lien on the fund specified in the judgment, and Bennett in his lifetime and his administrator since his death is the trustee or custodian of the money. The alleged assignments or orders are of no validity until allowed against the estate of Bennett. A very similar principle to this was decided by this court more than thirty years ago in the case of Simonds v. Pettebone's Adm'r, 3 Mo. 33.

II. The administrator James M. Reilly is no party to the petition. He should have been a party to the proceeding so as to give him an opportunity to defend the estate of which he is administrator.

III. The Circuit Court has no original jurisdiction in cases of this kind.

The only jurisdiction the Circuit Court has is on an appeal from the Probate Court. By a reference to the record it will be seen that this is not an appeal case from the Probate Court, but a case which originated in the Circuit Court.

Cline & Jamison, for defendant in error.

I. There is no error in the action of the court below in making said distri bution or in overruling said motion. The St. Louis Circuit Court, in which said judgment was rendered, had the right and power to distribute the proceeds of said judgment among the eqnitable assignees.

II. The assignments of said William Bennett in his lifetime were equitable assignments of said judgment--Love v. Fairfield, 13 Mo. 300; Ashby v. Winston, 26 Mo. 210; Baker v. Stonebraker, 34 Mo. 172.

Lackland, Cline & Jamison, the attorneys who collected said judgment, had the right, and it was their duty, to distribute the proceeds of said judgment to said assignees under and according to said equitable assignments, and the power and authority therein contained but as a prudent measure and as a protection to them.

FAGG, Judge delivered the opinion of the court.

The record in this case presents rather a singular state of facts. It ap pears that on the 30th day of January, 1861, William Bennett recovered a judgment against Samuel Russell for nine thousand three hundred and thirty-eight and 35-100 dollars; that an appeal was taken to the Supreme Court and the judgment affirmed at the March term, 1864. At different periods during the year 1861 Bennett made an assignment of protions of the proceeds of said judgments to various creditors to an amount in the aggregate of about the same for which he had obtained judgment. The said several sums were to be paid out of the proceeds, when collected by the officer or other person authorized to receive the same. William Bennett died sometime thereafter, but at what precise period is not shown.

On the 20th of February, 1865, Lackland, Cline & Jamison, representing themselves as the...