Hyde v. Gearhart

McCOY, J. This action was instituted for the purpose of off-setting certain alleged mutual judgments in favor of plaintiff against a certain judgment rendered in favor of defendant N. B. Gearhart against .this plaintiff. Findings and judgment were in favor of defendants, and plaintiff appeals. [x] The sufficiency of the findings to support the judgment is raised by the assignments of error. From the record it appears that the judgment in favor of N. B. Gearhart was rendered, entered, and docketed in the circuit court, on the 24th day of August,- 1915; that on the 25th day of August, the said judgment was assigned by said N. B. Gearhart to the respondent Nettie B. Gearhart, which said assignment was on that day filed and a note thereof entered on the judgment book. Thereafter the said Nettie B. Gearhart assigned said judgment to the respondent First National Bank. On the 19-th day of November, 1915, the appellant recovered a judgment in the circuit court against said N. B. Gearhart, and on the 17th day of December, 1917, plaintiff also recovered another judgment against said N. B. Gearhart. ' These last two mentioned judgments in favor of appellant, by this action, are sought to be offset against the said judgment in favor of said N. B. Gearhart. Appellant contends that said assignment of judgment to Nettie B. Gearhart was fraudulent and without consideration and colorable only, and made for the purpose of defeating plaintiff’s right to offset his said judgments. The trial court found that said' assignment to the respondent Nettie B. Gearhart was made in good faith and for a valuable consideration, and that ■by'- virtue thereof the appellant had no right to offset his said judgments. The findings of fact show that the conclusion of the trial court as expressed in said findings was based upon sufficient and competent testimony. ' [2] Appellant also contends that under the provisions of sections 2307 and 2575, Code 1919, no effective assignment of said judgment was ever made to the said Nettie B. Gearhart, in that no notice thereof was ever, given to appellant. We are of [219] the opinion, however, that appellant had notice of such assignment. About the time said assignment was made, appellant sought to prevent the filing thereof. The entry in the judgment book noting the filing of said assignment was one method of notice thereof to appellant. 15 R. C. R. 777. It clearly appears from the record that at the time the said assignment of said judgment was made to Nettie B. Gearhart, appellant had no judgment against N. B. Gearhart, which was. or might have been the subject of then being offset against the said judgment in favor of N. B. Gearhart. We are of the opinion that the findings of the trial court were sufficient to sustain the judgment. The judgment and order appealed from are affirmed.