Richardson v. Gilbert

• Decision Date: 01 June 1885
• Citation: 21 Fla. 544
• Court: Florida Supreme Court
• Parties: J. N. RICHARDSON, APPELLANT, v. J. H. GILBERT ET AL., APPELLEES

21 Fla. 544

J. N. RICHARDSON, APPELLANT, v. J. H. GILBERT ET AL., APPELLEES

Supreme Court of Florida

June 1, 1885

Rehearing Denied 21 Fla. 544 at 547.

Appeal from the Circuit Court for Jackson county.

The facts of the case are stated in the opinion.

Case remanded.

F. B Carter for Appellant.

J. F McClellan for Appellees.

OPINION

MR JUSTICE RANEY.

The bill in this case, filed October 9th, 1882, is brought by the appellant against Gilbert, and his wife and Russ, to subject a piece of land, the title to which was taken in the wife's name, to Gilbert's debts, and to have a mortgage thereon made to Russ by Gilbert and wife, declared fraudulent and void as against the indebtedness held by appellant. Russ died after answering the bill, and his executor and executrix were made parties. The title to the land has never been in Gilbert, but was conveyed directly to his wife by the commissioners who sold it, and is therefore what is termed an equitable asset.

The bill alleged the pendency of a suit at law brought on a bond against Gilbert, and another, by Richardson, and one Stephens, and that Stephens had assigned all his interest therein to Richardson. By an amendment made by consent November 26, 1883, it is alleged that judgment thereon was rendered May 24, 1883, for $ 166.44. The bill also alleges the rendition of a judgment by a Justice of the Peace for $ 48.48 in favor of Theo. West, against Gilbert, on a promissory note made in February, 1878, and that execution issued thereon, and "that said execution has been placed in the sheriff's hands, and his return of no property endorsed upon said execution."

It alleges also the recovery of two other judgments against Gilbert. One for $ 96.93, March 23, 1881, in favor of Charles W. Davis, on an indebtedness of date prior to September 3d, 1877, and the other in favor of W. D. Barnes, and rendered in September, 1881, for $ 62.26, on a written instrument made in October, 1877. The issue of an execution on each of these judgments is alleged, and it is also alleged as to the former, that "on the 5th day of October, 1882, the sheriff of Jackson county made his return upon said execution that no property could be found upon which a levy could be made," and as to the latter, that "the sheriff made his return upon said execution that no property of the defendant, John H. Gilbert, could be found upon which a levy could be made." The bill states that on the second day of October, A. D. 1882, West transferred and assigned his execution to "complainant" for a valuable consideration and authorized "complainant" to collect the same for his own account, so that now "complainant is the sole owner of said execution, which is still due and unpaid," and that Davis "transferred and assigned" to complainant his "execution for a valuable consideration, so that now your orator is the sole owner thereof;" and that Barnes "transferred for a valuable consideration to your orator, his aforesaid execution, and authorized him to collect the same." Copies of the executions and of the assignments thereof endorsed thereon are annexed as part of the bill. The assignments read as follows, omitting the signatures and dates: That from West, "For a valuable consideration, I hereby transfer and assign this execution to James N. Richardson;" that from Davis is in the same language, and that from Barnes is the same also, with the addition of the words, "and authorize him to collect the same." The sheriff's return on each execution also states: "Returned not executed."

Where a creditor seeks the aid of equity to reach an equitable asset, which, as in this case, cannot be taken on execution at law, he must have obtained judgment, issued an execution, and there must be a return of the execution unsatisfied, because that no property of the defendant therein subject to levy can be found. Freeman on Executions, § 428; Robinson vs. Springfield Co., 21 Fla. It is too evident that there is nothing amounting to an allegation of a sufficient return of the execution in the case of the West execution. According to authorities, which it may be well to consider, the allegations of the bill as to the return of the other executions are hardly sufficient. Beck vs. Burdett, 1 Paige Ch. 305; Storm vs. Waddell, 2 Sanford Chancery, 564; Nelson vs. Cook, 19 Ill. 440; State vs. Melton, 8 Mo. 417; Welsh vs. Joy, 13 Pick. 477; McIlvain vs. Willis, 9 Wendell 548; Freeman on Executions, § 428.

Assuming, however, that these allegations are sufficient and there has been a return of the executions, what is there in the bill to show that the complainant is the owner of the judgments of which satisfaction is sought? If complainant is the assignee and owner of the judgments he should so allege. We cannot assume it. It is a familiar rule that a pleading is to be taken most strongly against the pleader. McIlvain vs. Willis, 9 Wend. 548. The allegation that one is the assignee or owner of a process, which has itself been returned, cannot be construed by us into an allegation of assignment or ownership of the judgment upon which it was issued, and which is the real claim sought to be collected. Freeman on Executions, § 424. If the process has actually been returned to the clerk's office, it cannot issue again, and is fuctus officio, except as evidence for the ground for equitable jurisdiction, and for the issue of another execution should it be necessary to issue one.

The case is remanded with directions that the last demurrer filed to the bill be sustained, with leave, however, to the complainant to amend if there be ground therefor, and with further direction that all proceedings in the cause subsequent to said demurrer be set aside.

The appellant must pay the costs of this appeal, as well as those which have accrued in the Circuit Court. [Syllabus Material] [Syllabus Material] [Syllabus Material]

21 Fla. 544 at 547.

Original Opinion of June Term, A. D. 1885, Reported at: 21 Fla. 544.

Rehearing denied.

The appellant then filed a petition for a re-hearing, which is as follows:

To the Honorables George McWhorter, Chief-Justice, and George P. Raney, and R. B. Van Valkenburgh, Justices of the Supreme Court of Florida:

The petition of appellant in the case of James N. Richardson vs. John H. Gilbert et al., just decided by this court, respectfully shows that he is advised that there is error in the judgment of this court remanding this case to the Circuit Court of Jackson county, Florida, with directions that the last demurrer filed to the bill be sustained, with leave to complainant to amend if there be ground; and that all proceedings in the case subsequent to the demurrer be set aside; and adjudging the costs of both this and the Circuit Court against the appellant, in this:

1st. The Sheriff's return upon the executions of which petitioner is assignee is sufficient to sustain the bill in this case. Copies of the executions and returns are a part of the bill. The return upon the West execution, which was considered bad by the court, and the weakest of them all, reads as follows: "Returned--not executed--no property to be found upon which a levy can be made. October 5th, 1882." This is clearly sufficient; it is not a return of "nulla bona," which simply means no goods to be found; but this is a return of no property, which includes both real and personal. The usual return of "nulla bona" without other words will be sufficient in the case of personal property. This return is amply sufficient. Freeman on Executions, secs. 355 and 356, citing Woodward vs. Harbin, 1 Ala. 108.

Freeman on Executions, sec. 428, cited by the court, fully sustains this return. It is there stated that the officer must make a return on the executions showing that he "can find no property subject thereto." This return fully sustains this requirement. It shows the execution is unsatisfied, and that the sheriff can find no property (either real or personal) upon which to levy. Robinson vs. Springfield Co., 21 Fla.

2d. The allegations of the bill, and the copy of assignment made a part of the same, are sufficient in law and in equity to show that the judgments mentioned in the bill were assigned to the complainant, and that he is the equitable owner of them, and therefore entitled to bring this suit. An assignee is protected by the statute against fraudulent conveyances as well as the original plaintiff in judgment. The authority cited by the court, Freeman on Executions, sec. 424, does not sustain the position that the proper assignment of the execution does not carry the judgment upon which this execution was issued with it. The more reasonable view is that the execution does carry the judgment, for it is absurd to suppose title in an execution in one, and title in the judgment which supports the execution in another. The judgment gives the execution vitality, and that only.

But the absolute assignment of an execution will carry the judgment. At common law the assignment of a judgment merely vested the assignee with an equitable title, and this common law doctrine prevails in this State. There is no special form or rule for assigning a judgment. It need not be written nor under seal. Freeman on Judgments, sec. 422. "The rights of a prevailing party to his judgment may be transferred by a conveyance of the land concerning which the judgment was rendered." Idem. And the true rule seems to be that any act that will clearly indicate an intention to assign a judgment will be valid as an assignment of the same in equity. Idem, sec. 423. The assignment of a judgment carries with it the cause of action upon which it was obtained. Idem 431. Why should not the execution carry the judgment? Where is the distinction? The court decides that petitioner's...