Crum v. Stanley

Ryan, C. This action was brought upon an appeal bond which had been given in an action of replevin, on which bond the makers had become liable by reason of a judgment against appellant. In this case there was judgment in favor of the obligee named in said bond. The errors complained of are presented in argument on special findings of fact. One of these findings was to the effect that while said appeal was pending, and before this suit was brought, Andrew J. Stanley, the obligee in the appeal bond, had had prepared by his attorney an instrument in writing, which he signed and which was duly filed, and is of record in the cause wherein it was given. This instrument was as follows: “Omaha, Nebraska, March 81, 1893. “For. value received I hereby assign, transfer, and set over to S. G-. Johnson all my right, title, and interest in [352] and to a certain judgment recovered by me against Bates & Co. on or about May 10, 1892, in tbe county court of Douglas county, said judgment being for tbe principal sum of seven bund-red dollars ($700), and tbe said cause in which judgment was obtained being appealed by tbe said Bates & Co. to tbe district court of Douglas county, and tbe said case being now pending in tbe said district court. This assignment is made subject to an attorney’s lien of A. 0. Wakeley in tbe sum of two hundred ($200) dollars for services rendered and to be rendered in said suit in said district court and in tbe supreme court, if tbe case i-s taken there. A. J. Stanley.” Plaintiff in error contends that after having signed and caused to be filed in tbe case, with tbe appeal bond, tbe above subscribed instrument, tbe obligee had no further interest therein and consequently bad no standing to sue for tbe amount for which judgment was subsequently recovered in tbe appeal case. It is urged by tbe defendant in error that as there was no finding that tbe assignment was accepted, there was no delivery; hence tbe assignee was vested with no title. This might be a pertinent consideration if tbe suit was being prosecuted by tbe assignee. But it is not. Tbe assignor caused tbe instrument to be prepared, signed it, and filed it in tbe case wherein tbe appeal bond bad been given. It is be who now seeks to avail himself of the failure of tbe finding to show an acceptance of tbe assignment by tbe assignee. This assignor, by filing tbe assignment as be did, left it optional with the .assignee to avail himself of its benefits, if be 'so elected. The contract itself recited that it was made for value received, and in tbe absence of any showing whatever we are not to believe that this was false. If there was a consideration for tbe assignment, then it was not optional with tbe assignor, at bis election, to withdraw or ignore it. He was therefore in tbe position of one who brings an action upon an instrument after having parted with all interest therein, by an assignment thereof to a third party. In [353] Pilger v. Marder, 55 Neb. 113 it was held that in replevin, where there are two or more defendants and the property has been taken under the writ and delivered to plaintiff after the execution by sureties of the prescribed replevin undertaking, if, by the judgment, the entire property is awarded to one defendant, the rights thus accorded may be enforced in an action by such defendant alone, without a joinder of other parties named as obligees in the undertaking. This was on the principle that every action is required by our Code of Civil Procedure to be prosecuted in the name of the real party in interest. Controlled by sectipn 29 of the Code of Civil Procedure above referred to, it was held by this court in Mills v. Murry, 1 Neb. 327, that the assignee of a chose in action is the proper and only party who can maintain a suit thereon. As the assignment was pleaded as a defense and established by the evidence, the defendant in error had no interest in the right of action sued upon; hence the judgment in his favor is reversed. Reversed and remanded.-