
    Pratchett v. Marsh et al.
    
      Appeal — Assignee of judgment the holder of legal title — Interest of assignor and assignee not joint — Appeal by assignee does not . take ^t,p case as to assignor.
    
    A judgment was transferred by absolute assignment by a debtor to her creditor as collateral security. The creditor thereupon commenced an action against the judgment debtor, making her assignor also a party. The latter answered denying that any debt was due from her to her assignee, and sought to enforce r the judgment in her own right, relying upon her denial of the debt to plaintiff as giving her an equitable ownership of the judgment. The judgment debtor attacked the judgment for fraud. On trial the common pleas found in favor of the judgment debtor and decreed that the petition of plaintiff and the cross-petition of the assignor be dismissed. The plaintiff appealed to the circuit court. The assignor, relying upon the appeal of the plaintiff as taking up the whole case, did not appeal. . The circuit court refused to entertain the claim of the assignor, and ordered the trial to proceed as between the plaintiff and the judgment debtor alone.
    
      Held: 1. By the assignment the assignee became the legal holder of the judgment, clothed with the legal title. 2. The interest of the plaintiff and that of her assignor (if any she had) were separate, and not joint. Hence the appeal of the plaintiff did not take up the issue tendered by her assignor.
    (Decided March 26, 1895.)
    Error to the Circuit Court of Licking county.
    Mrs. Diantha M. Brooks brought action against Mrs. Eliza Marsh and Mrs. Jennett Pratchett, praying for the taking of an account of the amount due upon a certain judgment rendered in favor of Mrs. Pratchett and against Mrs. Marsh, which had been assigned to Mrs. Brooks as security for the payment of a $400 note held by Mrs. Brooks, against Mrs. Pratchett, on which judgment execution had issued and levy had been made on the lands of Mrs. Marsh, and for an account of the amount due on the note. Also praying judgment and decree that unless Mrs. Marsh, or some one for her, pay the amount so found due, the real estate described in the petition be sold and proceeds applied in satisfaction of plaintiff’s lien, and for such other relief as the facts and equity may require.
    Mrs. Marsh answered, denying the validity of the judgment, and averring that the judgment, and the note on which it was based, were obtained by fraud, setting up the ground thereof. Also Setting up, as a bar, a judgment obtained in her favor in a suit between herself and Mrs. Pratchett in which an injunction had been allowed restraining the latter from enforcing the judgment.
    
      Mrs. Marsh’s prayer was that the judgment declared upon in the petition be adjudged fraudulent and the pretended lien of no effect, and that the plaintiff and Mrs. Pratchett be prevented from enforcing the judgment or its lien against her property; that the action be dismissed, and for all proper relief.
    Mrs. Pratchett answered denying all indebtedness on the $400 note, and alleging facts which, if true, would show that the note had been paid.
    Also setting up by way of counterclaim, the execution by her of a chattel mortgage on certain specified chattels of the value of $339, as security for the payment of $300 claimed to be due Mrs. Brooks on the $400 note, and averring that Mrs. Brooks took said chattels and converted them to her own use. And asking judgment against Mrs. Brooks for the value of the chattels taken and for other proper relief.
    As to Mrs. Marsh’s claim, the defendant, Pratchett denied the conclusions, and alleged facts to sustain the denial. She also prayed a dismissal of defendant Marsh’s cross-petition, and that she have such affirmative relief as she might be entitled to protect her interest under the judgment.
    Reports were filed taking issue on the new matter pleaded in the cross-petitions of Mrs. Marsh and Mrs. Pratchett, as well as by those defendants against each other .as by the plaintiff against each.
    The common pleas on trial found the issues for Mrs. Marsh, and decreed that the petition be dismissed, and the answer of Mrs. Pratchett, so far as it demands affirmative relief, be dismissed; and that Mrs. Pratchett and the plaintiff be perpetually enjoined from attempting to enforce the judgment, and that the lien upon the real estate be canceled. Also adjudging costs made by plaintiff against her, and the residue of the costs against Mrs. Pratchett.
    Notice of appeal was given by both the plaintiff and Mrs. Pratchett, and the court fixed the bond for appeal for each at $100.
    Mrs. Brooks filed her bond and perfected her appeal.
    Mrs. Pratchett filed no bond and took no further step to appeal.
    The circuit court ordered the trial to proceed in that court on the issue between Mrs. Brooks and Mrs. Marsh, but refused to entertain the appeal as to Mrs. Pratchett, and the latter seeks to reverse that holding.
    
      J. A. Flory and B. G. Smythe, for plaintiff in error.
    
      Kibler & Kibler and J. R. Davies, for defendant in error.
   Spear, J.

The question is: Did the appeal by Mrs. Brooks take to the circuit court the case as to Mrs. Pratchett?

Two propositions are advanced by counsel for plaintiff in error in support of his contention that Mrs. Brooks’ appeal took up the whole case.

1. That Mrs. Pratchett was a necessary party in the common pleas in order to a determination of the issues bétween the plaintiff below and Mrs. Marsh, and hence was a necessary party in the circuit court.

2. That the claims of Mrs. Brooks and Mrs. Pratchett, as regards the judgment against Mrs. Marsh, were joint, and hence the appeal by one as to her ease necessarily involved the case of the other.

Unless both of these propositions can be maintained the contention of plaintiff in error must fail.

It is, we suppose, well settled that the assignor of a chose in action assigned as collateral security is not, in the first instance, a necessary party to a suit upon the claim, unless it appears by the petition that such assignor has, or claims, some interest in the subject matter adverse to the plaintiff. Allen v. Miller, 11 Ohio St., 374. No averment indicating such adverse interest appears in the petition. Hence, at the outset, the presence of . Mrs. Pratchett was not necessary to a determination of the rights of the plaintiff as against the judg-ment debtor. What, then, was the effect of Mrs. Pratchett’s answer ? If it be conceded that the averments disputing the alleged debt to plaintiff were equivalent to a claim that Mrs. Pratchett was in equity the owner of the judgment, still the pleading falls short of asserting a .claim that she and plaintiff were joint owners of the judgment. Indeed, the conclusion sugg-ested is wholly inconsistent with the idea oí joint ownership. Either the plaintiff owned it by virtue of his legal title, or Mrs. Pratchett owned it by virtue of her equitable claim. Hence, there were two parties striving to recover of the real defendant the same thing, but by wholly different and inconsistent claims as to title. The common pleas held that neither owned the judgment because it had not legal validity, and hence could not be the subject of ownership. This defeated both the plaintiff and Mrs. Pratchett it is true, but it defeated them as separate and not joint claimants. And this result is in no way affected by the fact that the judgment rendered is in form joint. In substance, it is a judgment against each of the parties demanding relief of the judgment debtor.

So, too, is the issue tendered by the affirmative claim of Mrs Pratchett, against the plaintiff, set up in the answer, wholly separate from the other issue in the case. If dissatisfied with the disposition of either branch of her contention, Mrs. Pratchett should have improved her opportunity to appeal. The separate appeal of the plaintiff as to her case cannot avail.

We are of opinion that the appeal of Mrs. Brooks did not carry to the circuit court any claim of Mrs. Pratchett, and. hence, that court did not err in ordering that the trial proceed alone on the issue between the plaintiff below and Mrs. Marsh.

Judgment affirmed.  