Summary
In Moses v. Thorne, 6 Cal. 87, it was held that, in the absence of an assignment of the undertaking, the assignee of the judgment could not maintain an action against the sureties upon the appeal bond, the reasoning being that the contract of the sureties was entirely distinct from and independent of the judgment, was not a necessary incident to it, and the rights under it did not pass by assignment of the judgment.
Summary of this case from Chilstrom v. EppingerOpinion
Appeal from the District Court of the Twelfth Judicial District.
The plaintiff brought his action in September, 1854, on an appeal bond filed in the case of M. T. O'Connor v. John Stack et al., by the defendants. The plaintiff alleged and proved final judgment in that case against the defendants, and assignment of the judgment to him by M. T. O'Connor, the judgment creditor; no assignment of the bond to plaintiff was alleged or proved, but the assignment of the judgment uses these word: " secured by appeal bond of Isaac N. Thorne and Robert T. Ridley as securities." The Court below allowed the plaintiff, under the objection of defendants, to put in evidence the assignment of judgment, and gave judgment for plaintiff. Defendant moved for a new trial, which was overruled, and defendant appealed.
COUNSEL
Cited Gordon v. Brown, 3 H. & M. 219; Strand v. Howell, 2 Pen. 649; Nixon v. Dickey, 2 Pen. 676.
The bond given is not a mere incident. It is a new contract between different parties, and defeasible on certain conditions. It is in no sense a mere security for the judgment, but is an independentobligation entered into for the purpose of testing a question of law, and does not pass by assignment of the judgment.
Wm. H. Rhodes, for Appellant.
E. Cook, for Respondent.
The assignment of the judgment refers to the bond, and carries it with it. The bond, when filed, became part of the record in that case, and passed with the judgment, as much as the assignment of a note carries with it the mortgage, the latter being merely incident to the debt. (Jackson v. Blodge, 5 Cowen, 202; Patterson v. Hull, 9 Cowen, 747; Cathcart's Appeal, 13 Harris, Penn. 416. and cases there cited.)
JUDGES: The opinion of the Court was delivered by Mr. Justice Heydenfeldt. Mr. Chief Justice Murray concurred.
OPINION
HEYDENFELDT, Judge
There was no right of action in the plaintiff in his own name. To entitle him to bring this suit, he should have had an assignment of the bond. The assignment of the judgment, while it may give him equitable rights to avail himself of the security afforded by the bond, cannot confer the right of bringing a common law action upon it.
The reason why a mortgage follows the transfer of a note which it secures, is because a foreclosure is only sought in equity.
The judgment is reversed.