Knapp, Stout & Co. v. Standley , 45 Mo. App. 264 ( 1891 )

Smith, P. j.

— In the attachment suit of Knapp, Stout & Co. against Swiggett Bros, one Hale Standley was summoned as garnishee. The interpleaders, Stafford & Rix, filed an inter plea in the attachment suit wherein they claimed that they had acquired the title to a certain judgment in favor of the attachment defendants against the garnishee, Standley, for $334.17, under a certain assignment made to them by the attachment defendants for a valuable consideration, before the service of the garnishment. The attachment plaintiffs interposed a general denial to the interplea. The case was submitted to the court without the intervention of a jury. The evidence in the record before ns discloses that the attachment defendants executed a formal assignment, in writing, of the judgment to the inter-pleaders on or about ten or eleven o’clock a. m. of December 12, 1888, which assignment was attested by the clerk of the circuit court of Carroll county — the court wherein the judgment was rendered — at four o’clock p. m. of that day.' The sheriff summoned the garnishee in the attachment suit between one and two o’clock p. m. of same day. No instructions were given or refused. The court found the issue for the interpleaders. The attachment plaintiffs filed a motion for a new trial on the ground that the judgment was against the evidence.

The material facts not being in dispute — there being no evidence to weigh — we must review their legal effect, and decide whether the judgment is warranted by such undisputed facts. Bruen v. Fair Ass’n, 40 Mo. App. 425; Waddell v. Williams, 50 Mo. 216; Henry v. Bliss, 75 Mo. 194; Douglass v. Orr, 58 Mo. 573; Moore v. Hutchinson, 69 Mo. 429. The attaching creditors contend that the assignment of the judgment was fraudulent as to them. So that the sole question is, whether the assignment which was executed before the service of the garnishment, but not attested by the clerk until a couple of hours afterwards, was effectual to vest the title of the judgment in the interpleaders, as against the lien of the attaching creditors. The assignment, being in writing, attached to the judgment and attested by the clerk, met the requirements of the statute. R. S., sec. 2672. It was sufficient to vest the title of the judgment in the interpleaders. The assignment being in writing, though on a separate paper, was complete and effectual as between the attachment defendants and the inter-pleaders before it was attached to the judgment and attested by the clerk. A judgment may be assigned like any other chose in action, and the assignee may sue in his own name. The mode pointed out by the statute is cumulative and not exclusive. But, while the assignment, before it is attached to the judgment, and attested by the clerk, is effective between the judgment plaintiff and the assignee, it would not bind the judgment defendant until he receives notice of it. The latter might pay it to the plaintiff, and be discharged in the absence of such notice. But, when the assignment is attached to the judgment and attested by the clerk, it then imparts notice to all parties. Tutt v. Couzins, 50 Mo. 152.

The attachment creditors were not purchasers of the judgment for value from the attachment defendants, and have no rights as such. At the date of the garnishment the attachment defendants had no interest in the judgment that was subject to attachment as their property. Stillwell v. McDonald, 39 Mo. 283. The denominating principle of this case is analogous to that in those cases where it was ruled that a tona fide purchaser of real estate, who had failed to record his deed until after judgment is obtained against the vendor, but who records it before a sale under the judgment, would hold it against a purchaser under the judgment; and this, though the judgment and sale be in a suit by attachment. Davis v. Ormsby, 14 Mo. 175; Valentine v. Havener, 20 Mo. 133; Potter v. McDowell, 43 Mo. 93; Stillwell v. McDonald, 39 Mo. 283 ; Fox v. Hall, 74 Mo. 315; Vance v. Corrigan, 78 Mo. 96. The assignment of the judgment, we think, passed the title of the attachment defendants to the interpleaders. The attachment defendants had no interest therein subject to attachment. As the attachment creditors have, in their brief, truly said, the contest “ was a race between creditors the only question is that of priority. The attaching creditor is, in respect to the judgment, in no different situation from that of the defendant under whom they claim. The title to the judgment had passed under the assignment to the interpleaders before the garnishment.

Even if the objection to the sufficiency of the verification of the interplea could be raised here for the first time, we think, since it is made by the attorney lor the interpleaders, that it is sufficient.

It results that the judgment of the circuit court will be affirmed.

All concur.