Lovins v. Humphries , 67 Ala. 437 ( 1880 )

BBICKELL, C. J.

— The motion entered against the appellant at the Fall term, 1879, of the Circuit Court, must be regarded as having been abandoned and discontinued. No notice of it was given, nor was any action whatever, so far as it appears from the record, taken at that term. The term of office of the sheriff having expired, the entry of the motion on the motion docket did not operate as notice. — Code of 1876, § 3353; Armstrong v. Robertson, 2 Ala. 164.

The second motion was founded on the default of the sheriff in failing to pay over money collected on an execution issuing in favor of John T. Humphries and Amanda Humphries, against E. I. Holcombe. The evidence offered tended to show the money was collected on an execution issuing in favor of W. G. Heald et al. v. Holcombe. The variance was fatal; and it was manifest error in the Circuit Court, to render judgment for the failure of the sheriff to pay over money collected on an execution different from the one described in the notice and motion.

The motion and notice formed a joint proceeding, in which the plaintiffs must have recovered jointly, not severally. There was also error in the rendition of judgment in favor of the appellee, solely and severally.

The loss of the transfer or assignment of the interest of William G. Heald in the estate of Harmon Heald, to Amanda Humphries, was shown, and secondary evidence of its contents was admissible. There was an absence of evidence that the judgment against Holcombe was embraced in the transfer, or that it had any connection whatever with the estate of Harmon Heald. Such evidence was essential to support the right of the transferree to the money it appears the sheriff had collected on an execution in which the transferror was one. of the plaintiffs.

Contracts in writing for the payment of money or other things, or the performance of any act or duty, are assignable by indorsement so as to authorize an action thereon in the name of each successive indorsee. — Code of 1876, § 2099, In its most enlarged sense, a judgment may be regarded as a contract for the payment of money, yet that is not its ordinary signification. — Keith v. Estell, 9 Port. 669; Smith v. Harrison, 33 Ala. 706. That a judgment is not within the influence of the statute to which we have referred, and that an assignment of it will not authorize the assignee to sue in his own name, was settled in Bunnell v. Magee, 9 Ala. 433. If the assignment or transfer made by Wiíllam G. Heald era-braced the judgment against Heald, the transferree could not in her own name maintain a summary proceeding against the sheriff for failing to pay over money collected on an execution issuing on the judgment.

The transfer was made by one of several plaintiffs in execution. It passed, doubtless, the right of the transferror to that part of the money collected to which he was entitled in severalty. In no event could it have passed the right to the assignee to maintain a separate action against the sheriff, unless it was founded on an express promise to pay her the part of the money collected, to which the transferror was entitled. Neither by assignment or otherwise, could the sheriff be subjected to separate actions by the parties having interests in a joint judgment.

It is not necessary to notice other errors in the record; we have pointed out such as will probably prove fatal to this proceeding.

Beversed and remanded.