Rowland v. Slate & Moyer

The opinion of the court was delivered, April 2d 1868, by Agnew, J. Rowland issued an attachment execution against the Eranklin Fire Insurance Company, upon a judgment against J. H. Fulmer & Co. Fulmer & Co. held a policy of insurance from the Franklin Insurance Co., on which judgment was after-wards obtained. During the pendency of Fulmer & Co.’s suit on the policy, and two days before the attachment of Rowland was served, Mr. White, as attorney of Fulmer & Co., made this entry on the appearance-docket: “ By direction of plaintiffs for the use of George Slate and Solomon Moyer,” and signed it as attorney of the plaintiffs. Slate and Moyer claiming the debt in the policy, by this assignment, were permitted to come in and interplead in the attachment. The insurance company made no defence in the attachment. The-issue, therefore, was clearly between Rowland, as a creditor of Fulmer & Co., and Slate and Moyer, as assignees of the policy; Rowland alleging that the assignment by White as attorney of Fulmer & Co., was made without the authority of the firm, and for the individual debt of J. H. Fulmer. In this state of the issue we do not perceive on what good ground the court below excluded the evidence offered to show that White acted without authority of the firm, and that the purpose of the assignment was to secure the individual debt of one partner only. An attorney at law has no authority, as such, to sell or assign the claim of his client: Campbell’s Appeal, 5 Casey 401; see also Willis v. Willis, 2 Jones 159; Tompkins v. Woodford, 1 Barr 156; Gable v. Hain, 1 Penna. 264; Stokely v. Robinson, 10 Casey 315. Although his entry was made on the appearance-docket it constituted no part of the record. An assignment is not a judicial act, but a matter in pais. It is true that the fact of filing and noting the assignment on the record of the case is often an important one in a dispute between a prior and a subsequent assignee of the same judgment, because of the publicity the record affords as notice: Fisher v. Knox, 1 Harris 622; Gaullagher v. Caldwell, 10 Harris 300. But the act of the attorney in making the memorandum is no part of the proceeding in the action, and not being [199] judicial in its nature does not fall within the rule forbidding any allegation contrary to the record. The case turned, therefore, upon the fact of the attorney’s authority, or on the subsequent ratification of it by the firm. The chief circumstance on which Slate and Moyer relied for ratification was that the jury was sworn in the suit of Fulmer & Co., against the insurance company for the use of Slate and Moyer, without objection on the part of Fulmer & Co. But this was long after the attachment had been served; and a ratification at that late day could not displace the service, if the assignment was not valid when the attachment was laid upon the debt. Whatever the evidence of ratification, and whensoever it took place, still ratification itself is a fact to be found by a jury. The court therefore erred in refusing evidence which tended to show that the attorney acted without authority, and in directing a verdict for the defendants without submitting the fact of ratification to the finding of the jury. The court erred also in declining to hear evidence showing that the assignment to Slate and Moyer was for the individual debts of J. H. Fulmer. The purpose of the assignment, it was alleged, was to secure payment of a judgment of Slate and Moyer against J. H. Fulmer, held by them in trust for his individual creditors. Rowland therefore was entitled to put this judgment in evidence, and the declaration of trust made by Slate and Moyer showing that all the claims, ■amounting to over $13,000, excepting a single claim of $75, were individual debts of Fulmer, and to follow this by evidence to show that this judgment was the consideration of White’s assignment. For if the plaintiff succeeded in showing these facts, then the act of Fulmer, through White, as his attorney, was an attempt to divert the assets of the firm to the payment of his individual debts, and this was not within his power: Clay v. Cottrell, 6 Harris 408; King v. Faber, 10 Harris 21; McQuewans v. Hawlin, 11 Casey 517; Leonard v. Winslow, 2 Grant 139; Rogers v. Bachelor, 12 Peters 232. The argument that a judgment accompanied by a writing setting forth the parties for whose issue it is held falls within the 5th-section of the Act of 24th March 1818, and was void because the writing was not recorded, is not well founded. A judgment is not an assignment. It creates a lien but passes no estate or interest in property. It is the act of the law and not of the party: Guy v. McElree, 2 Casey 92; Breading v. Boggs, 8 Harris 33. The judgment is reversed, and a venire facias de novo awarded.