Meyer v. Jones

[379]

THE COURT.

In this case the defendants executed an undertaking in the sum of $460 for the release of an attachment which had been levied on the property of the C. L. Decker Company in an action in which that company was defendant and the plaintiff’s assignor, Samuel Meyer, was plaintiff, and in which judgment went in favor of plaintiff. In the trial of that action it was stipulated by the parties thereto in open court that the judgment to be rendered therein should be final. Judgment was duly rendered, and no motion for a new trial was made nor any appeal taken, and at the time of the commencement of the present suit the judgment therein was final. Subsequent to its entry Samuel Meyer, without having made any demand for payment of the same, assigned it to the plaintiff herein, who three days later notified the C. L. Decker Company of the assignment. She also caused a writ of execution to be issued, which was returned unsatisfied, whereupon she demanded of the defendants herein payment of the judgment, together with interest and costs, and upon their failure to comply with such demand commenced this action against them upon their bond.

While the judgment was assigned to the plaintiff, there was no assignment of any right or benefit accruing from the defendants’ undertaking; and the appellant now contends that the plaintiff acquired no rights under the bond by virtue of their assignment of the judgment. We cannot agree .with this contention. We are of the opinion that the undertaking was an incident to the judgment, and that the assignment of the latter entitled the assignee to maintain this action on the bond against the sureties

(Heisen

v.

Smith,

138 Cal. 216, [94 Am. St. Rep. 39, 71 Pac. 180] ;

King

v.

Miller,

53 Or. 53, 59, [97 Pac. 544]).

It is stated in 4 Cyc. at page 72, that the claim upon which a judgment is founded, and all the remedies carried by it, pass by an assignment of the judgment as an incident thereto. In