McLamb v. . Adams

Devin, J. The defendant’s only exception is to the judgment. Hence, the single question for decision is whether, upon the facts found by the clerk and confirmed by the judge, the defendant was entitled to the relief sought. At January Term, 1940,. plaintiff McLamb recovered judgment against defendant Adams in sum of $172.49. Previously the plaintiff Martha J. *715 McLamb bad agreed witb ber counsel, Stevens, Farmer & Hill, to assign to tbem one-balf of tbe recovery. It was found by tbe clerk tbat defendant, on 1 February, 1940, paid tbe judgment in full to Martba J. McLamb, $172.49, and took ber receipt acknowledging complete satisfaction of tbe judgment. But tbe clerk found tbat this was without tbe consent and knowledge of plaintiff’s attorneys, and tbat tbe payment did not impair tbe right of tbe attorneys to fifty per cent of tbe judgment and to execution thereon. It appears tbat tbe judgment in McLamb v. Adams was not actually entered on tbe judgment docket until 5 February, 1940, and tbat at tbe same time the assignment of fifty per cent of tbe judgment to tbe attorneys was filed by tbem and noted on tbe record by tbe clerk’s deputy. It also appeared from tbe affidavit of one of plaintiff’s attorneys, introduced in evidence, tbat before tbe judgment was paid be asked defendant’s counsel about payment of tbe judgment, and was informed by tbe latter tbat be thought Adams was going to pay it tbat day to Mrs. McLamb. Asked if ber counsel bad been paid, plaintiff’s counsel replied, “If you should pay it to Mrs. McLamb, we are protected.” There was no evidence tbat either Adams or bis counsel bad notice or knowledge of tbe assignment pro tanto of tbe judgment to plaintiff’s attorneys. Tbe mere statement “we are protected” may not be held to constitute notice tbat tbe judgment itself bad been assigned. Under these facts we think tbe judgment, so far as tbe recovery was concerned, was fully satisfied, and tbat, without notice of any assignment of tbe judgment, in whole or in part, payment in full to tbe judgment creditor constituted a discharge. “Tbe presumption is tbat the plaintiff in a judgment is tbe owner of it, and tbe burden of proof must be on tbe one who alleges tbe contrary.” Brown v. Harding, 170 N. C., 253 (261), 86 S. E., 1010. It was said by Ruffin, C. J., in Hewett v. Outland, 37 N. C., 438: “It is true tbe (judgment) debtor is not charged witb knowledge of the assignment of a demand tbat is not negotiable, and, therefore, be may rightly pay bis original creditor, until he knows tbat another person has become bis creditor.” See also 30 A. L. R., 820 (note) ; 30 Am. Jur., 892. We think tbe plaintiff’s attorneys as assignees of the judgment are not entitled to execution on tbe judgment, since the recovery has been paid in full to tbe judgment creditor without notice or knowledge of tbe assignment, and tbat tbe order overruling defendant’s motion to recall tbe execution must be Reversed.