Lapique v. Plummer

MELVIN, J.

Plaintiff brought this suit and in his complaint alleged that he was the assignee of a judgment rendered on the twenty-fifth day of January, 1911, by the superior court in favor of Dolores U. de Marquez against Eugene R. Plummer' for the sum of three thousand seven hundred dollars. His proof showed that to his said assignor had been distributed, as a part of the estate of Manuel Marquez, a claim against said Plummer for three thousand seven

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hundred dollars, and this claim had been assigned by her to plaintiff. There was no showing and no attempt to show that the claim had been reduced to a judgment. Indeed it was the theory of the plaintiff that the decree of distribution itself operated as a money judgment against Plummer and in favor of Mrs. de Marquez. Defendant moved for a nonsuit at the conclusion of the testimony on behalf of plaintiff. The motion was granted and from the judgment, as well as from an order discharging an attachment, plaintiff appeals.

The learned judge of the superior court who presided at the trial, carefully, courteously, and repeatedly explained to the plaintiff that a mere claim distributed to an heir or legatee in a probate proceeding was not a judgment for the money or property mentioned therein. Realizing that the plaintiff was not a lawyer, the learned judge took great pains to demonstrate that the theory which plaintiff had adopted was absolutely a false one. A few brief quotations from the record will serve to illustrate how thoroughly he analyzed the matter so that the most untrained and immature mind might easily have grasped the true situation. He said: “The superior court of this county, acting in the exercise of its jurisdiction as a probate court, has settled and distributed this estate, and in the distribution of that estate it has decreed—not that there is anything due from Mr. Plummer to this distributee, not a dollar, but has decreed that that claim that the estate has urged, and which has been inventoried possibly against this party, is distributed to the distributee. There is the distinction. Not that any claim has been adjudged to be a valid and existing claim against Mr. Plummer, but it has been adjudged that that claim be distributed to this party, so that the party may take such proceedings after-wards as she sees fit, to reduce that claim to a judgment; because, if it was a judgment, all you would have to do in this court would be simply to introduce the judgment-roll and that would end it, and then it would be upon the other side to attack it for lack of jurisdiction or fraud, or on some other ground.” The plaintiff stoutly insisted that the decree of distribution was a judgment and the court replied: “ It is a judgment, but you want to make it a judgment for property that the law does not permit. It is a judgment decreeing that whatever that claim is against Mr. Plummer belongs to this distributee rather than to John Doe or Richard Roe or