Fordyce v. McPhetrige , 71 Ark. 327 ( 1903 )

Hughes, J.

This is an appeal from a judgment given for $75 for an attorney’s fee under the act of April 4, 1899. The act is as follows:

“An act to authorize and regulate the sale and transfer of judgments and of causes of action upon which suit has been brought.

"Be ii enacted by the General Assembly of the State of Arkansas:.

“Section 1. The sale of a judgment, or any part thereof, of any court of record within this state, or the sale of any cause of action, or interest therein, after suit has been filed thereon, shall be evidenced by a written transfer, which, when acknowledged in the form and manner required by law for the acknowledgment of deeds, may be filed with the papers of such suit, and, when thus filed by the clerk, it shall be his duty to make a minute of said transfer on the margin of the record of the court where such judgment of said court is recorded, or, if judgment be not rendered when said transfer is filed, the clerk shall make a minnte of such transfer on the docket of the court where suit is entered, giving briefly the substance thereof, for which service he shall be entitled to a fee of twenty-five cents, to be paid by the party applying therefor ; and this act shall apply to any and all judgments, suits, claims and causes of action, whether assignable in law and equity or not. When said transfer is duly acknowledged, filed and noted as aforesaid, the same shall be full notice and valid and binding upon all persons subsequently dealing with reference to said cause of action or judgment, whether they have actual knowledge of such transfer or not. In case the plaintiff and defendant compromise any suit for liquidated damages or any other cause of action after same is filed, where the fees or any part thereof to be paid to the attorney for the party plaintiff or defendant are contingent, the attorney for the party plaintiff or defendant receiving a consideration for said compromise shall have a right of action against both plaintiff and defendant for a reasonable fee, to be fixed by the court or jury trying the case.

“Section 2. This act shall take effect and be in force from and after it passage.”

The complaint was demurred to on the ground that it did not state facts sufficient to constitute a cause of action, and it was also contended that the act under which this suit was brought had not been properly passed; that it was not introduced by bill, as required by the constitution; also that it embraced more than one subject; also that the act was amended on its passage through the house, so as to change its original purpose, contrary to the constitution of the state of Arkansas, etc.

But, passing over any of these objections without discussion, we find that the appellants demurred to the complaint, and asked the court to instruct the jury of the trial to find for them, which the court refused to do, to which they excepted. The complaint does not allege that the appellees took an assignment of their interest in the cause of action, in accordance with the terms of the act of April 4, 1899, supra. No judgment had been rendered. A complaint had been filed. According to the terms of this act, they should have taken a transfer of an interest in the action in writing, and filed it with the papers in the case, and have caused a note of such transfer, or the substance thereof, to be made upon the docket of the case by the clerk of the court. When said transfer is duly acknowledged, filed and noted as aforesaid, the same shall be full notice and valid and binding upon all persons subsequently dealing with reference to said cause of action or judgment/ whether they have actual knowledge of such transfer or; not. The complaint failed to state that tire plaintiffs had complied with this requirement of the act, and there is no evidence that it was complied with.

There is no cause of action stated or shown, for which failure the judgment is reversed, and the cause is remanded for a new trial.