Posson v. Guaranty Loan Assoc.

Mr. Justice Bean, after stating the facts in the foregoing terms, delivered the opinion of the court. The defendant’s assignment of the note and mortgage in suit was made after the complaint had been filed and the summons issued, but before its service on the defendant, and the question for decision is whether such an assignment will abate or defeat the suit. It is now settled that the assignment or transfer by a defendant of his interest in the subject-matter of the litigation during its pendency does not defeat the suit, but that his purchaser is bound by any judgment or decree that may be rendered therein: Walker v. Goldsmith, 14 Or. 125 (12 Pac. 537); Houston v. Timmerman, 17 Or. 499 (21 Pac. 1037, 4 L. R. A. 716, 11 Am. St. Rep. 848); Jennings v. Kiernan, 35 Or. 349 (55 Pac. 443, 56 Pac. 72). There is some conflict in the authorities as to when a suit is deemed to be commenced and pending, within this rule, but it is unnecessary to look beyond our statute for an answer to the question. Subdivision 2 of Section 745, B. & C. Comp., provides that a judgment or decree is, in respect to the matter directly determined, conclusive between the parties and their representatives and successors in interest by title subsequent to the commencement of the action, suit, or proceeding, litigating for the same thing, under the same title, and in the same capacity. By this section a judgment or decree is made conclusive as against a purchaser from either of the parties after “the commencement of the action, suit, [108] or proceeding.” By Sections 51 and 396, B. & 0. Comp., an action or suit is to be deemed commenced, for all purposes except the statute of limitations, by the filing of the complaint with the clerk of the court: Burns v. White Swan Min. Co. 35 Or. 305 (57 Pac. 637). Therefore an assignee who acquires title to the subject-matter of the litigation after the filing of the complaint takes pendente lite, and is bound by the proceedings against his assignor. The decree is affirmed. Affirmed.