North v. Evans

California Court of Appeal Sep 24, 1934 No. Civ. 1098Published

Before: Marks

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Holding. The court held that an assignment of a judgment effectively assigns the underlying debt, and that execution sales of notes held in custodia legis by a court clerk are invalid. Consequently, the judgment for the plaintiff was affirmed after being modified to remove attorney's fees.

Issues

Whether the assignment of a judgment constitutes an assignment of the underlying debt when the judgment is subsequently reversed.
Whether notes held by a court clerk in custodia legis are subject to levy and execution sale.
Whether a party can recover attorney's fees when their attorney is the real party in interest.

Disposition. modified and affirmed

Quotations verified verbatim against the opinion

“the debt being assignable, the assignment of the judgment assigned the debt upon which it was based.”

“All interest of Wilkinson in the notes passed out of him long before the levy of the execution and he had no interest in them at the time of the levy and sale.”

MARKS, J.

On December 13, 1927, Lillian E. Evans gave E. D. Wilkinson her promissory note for $700, due 180 days after date. On March 28, 1928, she gave him a second note for $787.50, due on or before September 1st of the same year. Prior to October 3, 1930, Wilkinson assigned both notes to C. C. North for collection. On that date Mrs. North instituted this action against Mrs. Evans to collect' the principal sums, interest, and attorney’s fees with S. G. North appearing as her attorney. Mrs. Evans filed her answer and on December 24, 1930, the trial court gave judgment against her on the pleadings. On December 31, 1930, E. D. Wilkinson assigned all his right, title and interest in this judgment to S. G. North for and in consideration of the sum of $100, and on January 5, 1931, O. O. North assigned all of her right, title and interest in the judgment to S. G. North in consideration of the sum of $5. Notices of these assignments were served upon Lillian E. Evans and her attorneys on January 5, 1931. This judgment was reversed by this court on October 2, 1931.

(North

Evans,

117 Cal. App. 317 [3 Pac. (2d) 609].) On December 3, 1931, the county clerk of San Diego County entered judgment in favor of Lillian E. Evans and against C. C. North in the sum of $92, costs of appeal.

The San Diego Trust and. Savings Bank secured a judgment against E. D. Wilkinson and his wife in the sum of $568.03, which was assigned to J. K. Wilson. On October 7, 1932, an execution was issued on this judgment and placed in the hands of the sheriff of San Diego County with instructions to levy upon all of the right, title and interest of E. D. Wilkinson in and to the promissory notes upon which this action is brought, by serving a writ of garnishment upon the county clerk of San Diego County who had possession of the notes which were attached as exhibits to a deposition of E. D. Wilkinson taken by the plaintiff in the instant case, and filed in the office of the county clerk. The clerk made a return on the garnishment stating that he had the notes

[66]

in his possession but did not deliver them to the sheriff. No garnishment was served on the maker of the notes.

North v. Evans

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MARKS, J.

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