Hamil v. McIlroy

Sharpstein, J. On May 12, 1884, appellant recovered a judgment against one Watson for $111.30, and on [313]the same day assigned it to respondent. Afterward appellant demanded a reassignment of said judgment by respondent to him, appellant, which respondent refused to make. Appellant brought this action to compel respondent to assign said judgment to him, appellant, and among other things alleges that said assignment from him to respondent was made without consideration, and that respondent holds the same merely as trustee for appellant. Respondent, in his answer, denied that allegation, and alleged that there was a full and valuable consideration for said assignment. And for a further defense alleged that the same matter was adjudged between the same parties in an action in the superior court of San Benito County.

The court found that appellant recovered judgment as alleged in his complaint, and that he assigned it to respondent. “That at the time of said assignment, there were unsettled demands existing between appellant and respondent, and among them advances made by respondent to and for appellant’s benefit in prosecuting said action above named; that these advances, and said unsettled demands were the only consideration for said assignment.”

The next finding is, that after said assignment was made appellant commenced an action against respondent, and recovered a judgment against him for the sum of twenty-eight dollars, and that in said action respondent filed a counterclaim for his said demands against appellant, which were allowed by the court. “ That in said action no credit was given to Hamil, plaintiff, for said judgment, or the assignment thereof; nor was the same in any manner litigated or alleged in' said action, and said defendant, Mcllroy, has never paid to plaintiff, Hamil, anything for or on account of said judgment, or the assignment thereof.”

These findings show that the assignment was made without any consideration, and appellant is entitled to a [314]reassignment, unless the defense of res adjudícala is sustained by the facts found. On that issue the finding is, that on March 20, 1883, one Dufresnoy recovered a judgment against Hamil, and assigned it to one N. C. Briggs, who filed a petition in the superior court of San Benito County, joining Dufresnoy with him, asking that the judgment against Watson be set off by the judgment against the judgment in favor of Dufresnoy to the amount of eighty-seven dollars, because Watson was the nominal and Dufresnoy the real party in the action of Hamil v. Watson. Hamil appeared in the proceeding, and joined in the petition of Briggs and Dufresnoy in asking that the judgment be set off. The court denied the prayer of the petitioner, finding, as the record shows, that the judgment in favor of Hamil was by him in due form assigned to one B. H. McIlroy. Whether for the purpose of collection or control did not appear on the hearing of the motion, but the assignment will be by the court, as it was by counsel, treated as for a valuable consideration.