Morris ex rel. Rupp v. McCulloch

The judgment of the Supreme Court was entered October 30th 1876,

Per Curiam.

The matter in issue in this case was the alleged negligence of the defendant, whereby the plaintiff lost the lien of his judgment upon the real estate of John Moyer. It was therefore very irregular to introduce into the trial of the cause a question whether the plaintiff’s right of action passed over to Rupp, the assignee of the judgment. It was an entire departure from the issue. So the introduction of the testimony of the plaintiff and his written disclaimer of his interest in the suit before the jury to defeat the action, was equally irregular. But it would be useless to reverse the judgment and send it back for a new trial, when the right of Rupp to maintain the action cannot be sustained, and when the plaintiff can prevent a trial by a retraxit or a discontinuance. It is not pretended that the plaintiff in fact assigned his right of action against McCulloch for negligence to Rupp. It is only claimed that it passed to Rupp by the effect of the assignment of the judgment against John Moyer. But this assignment carried with it only securities, if any, held to secure payment of the debt. A right of action founded on negligence of the attorney prior to the assignment, was a matter independent of the debt assigned, founded in alleged wrongful conduct, whereby the plaintiff was injured; and was not a security held for the payment of the debt. Collaterals held as security pass in equity by the assignment, though not named; but a party is not bound to enforce a remedy for a wrong or injury done to him, though it relate to the matter assigned. Here the plaintiff in the judgment, Morris, assigned a judgment against John Moyer, to Rupp, when in point of fact he had none, his judgment being against Jacob Moyer. This might raise a question between him and Rupp, but was not an equitable assignment of his right of action against McCulloch.

Judgment affirmed.