Leighton v. Serveson

Fuller, J. In justice court plaintiff obtained a judgment for $68.50 against the defendant Serveson, who appealed therefrom to the circuit court, where said judgment was affirmed. Plaintiff’s attorney herein,' S. A. Ramsey, Esq., had at all times exclusive charge of the above mentioned cause, and before the commencement of this action against Serveson, as principal, and Corkings and McAuley, as sureties, upon the undertaking on appeal from the judgment obtained in justice court, an attorney’s lien for $33 was by said Ramsey perfected and made effectual against the judgment debtor, by filing the same as [352] provided by Subdivision 4 of Sec. 470 of tbe Compiled Laws. Plaintiff bad judgment below, and tbe defendant Corkings appeals. . During tbe pendency of tbis action in tbe trial court, and long after tbe filing of the attorney’s lien above mentioned, and apparently with actual notice thereof, the defendant Corkings obtained an assignment of plaintiffs interest in tbe judgment existing against tbe defendant Severson, and by leave of court filed a supplemental answer in which such assignment was averred, and in which a dismissal of tbe cause was demanded, together with a judgment for costs, against plaintiff, accruing in tbis action subsequently to plaintiff’s assignment of bis interest as a judgment creditor of Serveson. A motion to substitute Corkings as a party plaintiff in tbe action upon tbe grounds mentioned in bis supplemental answer, was properly overruled. By filing bis lien for attorney’s fees Ramsey became, as against tbe judgment debtor, and in equity, tbe assignee and owner of an interest in tbe judgment and cause of action upon tbe undertaking, which was not divested nor affected by tbe assignment of plaintiff’s interest therein. Clark v. Sullivan, (N. D.) 55 N. W. 738. Tbe assignment of plaintiff’s interest in the judgment to tbe defendant Corkings neither relieved tbe judgment debtor nor bis sureties from their liability to Ramsey. He still remained a party in interest, and it was within the power of tbe court to permit tbe action to proceed to judgment in the name ¡of tbe original plaintiff against the sureties upon their undertaking, they alone having appeared herein. Comp. Laws, § 4881. The judgment against Serveson still stood charged with tbe attorney’s lien, and the fact that tbe court sustained a motion to direct a verdict in plaintiff’s favor against tbe defendant sureties, simply for tbe amount of tbe unassigned interest of Ramsey, being fully established by the evidence is not a matter of which appellant has any reason to complain. The record as presented discloses nothing to justify a reversal, and tbe judg^ pient of tbe trial court is affirmed,