
    Miller et al. Exrs. v. B. & O. R. R. Company.
    
      Filing of written assignment of judgment not constructive notice of assignment.
    
    The filing of a written assignment of a judgment with the clerk of the court in which the judgment was rendered, and the entry of the same by the clerk upon the appearance docket of the court, do not constitute notice to others of the assignment.
    (Decided June 6, 1899.)
    Error to the Circuit Court of Licking county.
    In an action brought by one Eli Hull against The Shawnee & Iron Point Coal and Iron Company, an attachment was issued and garnishee process served on The Baltimore & Ohio Railroad Com•pany, defendant in error. The company filed an answer, as garnishee, in which, by mistake and misinformation of its agent and attorney, it denied being indebted to the iron company, although, in fact it was indebted at the time. A judgment was rendered in the cause in favor of Hull and against the iron company for $2,344.50, and costs. Shortly after the rendition oí this judgment, Hull, for a valuable consideration, made an assignment in writing of a portion of the judgment to one A. B. Clark (of whom plaintiffs in error are executors), which assignment, soon thereafter was left with the clerk of the court wherein the judgment was rendered, and by him copied on the appearance docket in the case.
    A few days after the rendition of the judgment in favor of Hull, a suit was commenced in the same court by The Shawnee & Iron Point Coal and Iron Company against the defendant in error, and others, in which it was charged that the defendant, The Baltimore & Ohio Railroad Company, was indebted to plaintiff in a large sum. The company answered, admitting its indebtedness, but averred that other persons, including the said Eli Hull, claimed an interest in the fund, and they were brought in. Such subsequent proceedings were had in the case that an order of court was duly entered finding that of the sum due from the Baltimore & Ohio Railroad Company to The Shawnee & Iron Point Coal and Iron Company, there should be paid to Eli Hull, by virtue of his attachment, the sum of $2,081.30 and costs, $11.00, and ordered payment of the same, and that such pay-. ment should work a full discharge of the Baltimore & Ohio Company. This amount was at once paid to Hull. No actual notice of the assignment from Hull to Clark was given in any way to the Baltimore & Ohio Company, and it had no notice of such assignment, or of such assignment having been left with the clerk or copied on the appearance docket, at 'the time of such payment to Hull, unless the leaving of such paper and its entry upon the docket were notice.
    
      The case was brought by the executors of Clark to recover ag’ainst The Baltimore & Ohio Company for a false return in the attachment proceedings at the suit of the said Hull against The Shawnee & Iron Point Coal and Iron Company, the right of action being based upon the assignment of a part of the Hull judgment hereinbefore described.
    
      J. A. Flory and Charles W. Miller, for plaintiffs in error.
    The main and possibly the only question in this was the payment of the money by the railroad company to Hull after the assignment had been made to Clark and others, a good payment so as to release the defendant from liability to the assignees and owners of the Hull judgment in the case of Hull v. Coal Co.
    
    We claim this is no defense. Clark and the other assignees of the judgment of Hull against the Coal Co. were not parties to the action of the Coal Co. v. The B. & O. R. R. Co. in which the money was paid out, and anything the court did in that case does not bind them. Childs v. Childs, 10 Ohio St., 339; Stewart v. Johnson, 30 Ohio St., 24; Hillinger v. Bates, 43 Ohio St., 437 ; Miller v. Atherton, Supreme Court of Ohio (not reported), 51 Ohio St., 623; Kniseley v. Evans, 34 Ohio St. 158.
    The attachment in the hands of the railroad company of its indebtedness to the coal company, by Hull, was in effect, what the Supreme Court says, “ a legal assignment ” of the indebtedness of the railroad company, to the Coal Co. to Hull. Alsdorf v. Reed, 45 Ohio St., 653 ; Secor v. Whetter, 39 Ohio St., 218.
    
      And the right to enforce all liens and remedies to collect it went to Hull, and by the assignment of Hull to Clark all his right to and in the judgment, and all rights and remedies he had to enforce it against the garnishee went to Clark. Whitman v. Keith, 18 Ohio St., 134; Holmes v. Gardner, 50 Ohio St., 167; Alsdorf v. Reed, 45 Ohio St., 653; Edwards v. Edwards, 24 Ohio St., 411; Pratchet v. Marsh, 52 Ohio St., 494.
    The remaining and only question is, was the payment of money to Hull by the railroad company, the defendant, without actual notice of the assignment by Hull to Clark such as released it from liability to Hull’s assignee, or in other words was it chargeable with notice of the assignment by the filing of the written assignment with the clerk of the court and its entry in full upon the appearance docket of the attachment case? We claim it was chargeable with such notice and rights of Clark for the following reasons:
    
      First — By the entry of the assignment upon the appearance docket.
    
      Second — By the filing of the original assignment with the clerk as a paper in the case.
    
      Third — -Because it was guilty of negligence in not looking at the papers and appearance docket in the original case in which its liability to Hull became fixed, and falsely answering therein that it was not indebted to the coal company before paying the money to Hull.
    
      Fourth — Because the B. & O. R. R. Co. had no ■ right to pay the money to any person without first having truthfully answered in the original attachment case and obtained an order of the court in that case to pay the money into court, in that case, for the benefit of the party owning the judgments therein. Faleys Appeal, 76 Penn. St., 43; Edridge v. Haslett's Administrator, etc., 38 Penn. St., 17.
    That the assignment placed upon the appearance docket was notice of Clark’s interest in it to the garnishee who by the service of the notice of garnishment upon it became a party to the action as hereafter shown, is well settled. Fisher v. Knox, 53 Am. Dec., 503; Norton v. Miller, 44 Penn. St., 258; Campbell's Appeal, 72 Penn. St., 641; Chapman v. Seeley, 9 Cir. C., 179; 4 Cir. Dec., 395.
    The holding of the court below that the statute did not authorize an assignment to be entered upon the records and therefore was not notice to the railroad company is too narrow construction to be given to the statutes.
    In Ohio the judgment is regarded as a “legal claim.” The assignment of it, is not the assignment of only an equitable claim, but is the assignment of the thing itself, the legal title and legal claim, which can be put on the claim itself (18 Ohio St., 143) and if a party is not chargeable with notice of what it contains, what is it notice of?'
    As to the second ground. The written assignment itself was filed with the clerk of the court with the papers. This was authorized by Revised Statutes sections 4958, 4960 to 4965.
    As to the fourth point. This point was entirely ignored by the court in its finding and decisions below. The court took no notice of the position occupied by the railroad company in the original attachment suit of Hull v. The Coal Co., as settled by the above authorities,
    
      J. II. Collins and Kibler do Kibler, for defendant in error.
    
      Was the entry of the assignment on the appearance docket constructive notice of the assignment? We insist it is not. Section 4598 provides what shall go on the appearance docket. Section 4957 provides that'the clerk shall keep at least five books, to be called the appearance docket, etc.
    There is no statute which makes any other entry on the appearance docket notice. In fact no entry at all, other than the names of the parties, except the date of the issue of the summons or other mesne process or order, and the date of the return of such writ or order. The language as to the latter is, that such “entry shall be evidence of such service.”
    It is only by force of a statute that any record of a court or office shall be notice of any act or fact. There is no statute which requires the assignment of a judgment to be entered upon the appearance docket, or any record, and there is no statute which says that such entry, if made, or a copy of it, shall be notice to any person or notice at all.
    The definition of constructive notice, is given in section 37, Wade on the Law of Notice.
    It was, therefore, the duty of the assignee to give personal notice to the judgment debtor, or any party concerned, if he claims the money, or any part of it, by virtue of the assignment; otherwise the judgment debtor or other party collaterally liable, may safely pay to the plaintiff in the judgment. Such personal notice is so easy to be given that it is singular, if there was a bona fide assignment of the judgment in question, that the notice was not given. Such assignee has no legal or equitable right to put a party in jeopardy or even inconvenience, by failure to give actual notice.
    
      This doctrine is well settled that, where notice is given, the debtor cannot make any new arrangement with the assignor so as to prejudice the rights of the assignee. Therefore, if the debtor pay the assignor, or procure his release of the debt, after notice of the assignment, it will not affect the rights of the assignor. Swan’s Treatise, 393; 3 John, 425 ; 13 Mass., 304; 1 John’s cases, 411; 11 John, 47; Patterson v. Wilkins, Wright, 501.
    The converse of the above proposition is this: that until notice is given, the debtor may pay the assignor, or may procure his release, for it is done innocently so far as the debtor is concerned. 16 Am. & Eng. Ency., 757, etc. ; 1 Am. & Eng. Ency., 840; Freeman on Judgments (last ed.), 426; 40 La. Ann., 273; 39 Minn., 382 ; 48 Pa. St., 70.
    Section 426, Freeman on J udgments : The claim made by plaintiff in error, that the filing of the original assignment of the judgment with the clerk of the common pleas court was a sufficient notice of the assignment to bind the defendant in error, is met by 40 La. Ann., 273 ; 48 Pa. St., 70 ; Bury v. Hartman, 4 S. & R., 178.
    Circumstances that might excite suspicion, not amounting- to bad faith, in the purchase of notes, are no defense. Kitchen v. Loudenback, 3 C. C. R., 228; s. c. 2 Circ. Dec., 129; Johnson v. Way, 27 Ohio St., 374; Kitchen v. Loudenback, 48 Ohio St., 177.
    Notice should be given to the debtor to keep him for binding the pledgee making payments to the pledgor. William v. Ingersoll, 89 N. Y., 518.
    Between the assignee of a chose in action and the debtor, the rights of the parties are determined by the time the debtor had notice, not by the time of assignment. Miller v. Kreter, 76 Pa., 78 ; 18 Eng. & Am. Ency., note 5, top 642.
    
      The statute makes certain records constructive notice equivalent to actual notice.
    ■ As to deeds, etc., section 4134. As to Us pendens, section 5055.
    As to real estate judgments operate to charge third persons with notice, as per section 5056.
    As to liens of judgments appealed from, section 5236. As to liens of judgment from first day of term, section 5375.
    The law governing the assignment of claims and choses in action is the same in effect as the law relating to the assignment of a judgment. Wade on the Law of Notice, sections 431, 432, 434, 435, 440; Weakly v. Hall, 13 Ohio, 167.
   By the Court.

The contention of plaintiffs in error is that the filing of the assignment with the clerk of the court and the copying of that paper on the appearance docket constituted notice of the assignment to The Baltimore & Ohio Railroad Company, upon the ground that the assignment was a paper in the case, and that the garnishee was so far a party in the action as to be bound to take notice of its filing and recording. We think not. The case was concluded by the entry of final judgment, and whether or not the garnishee was bound to take notice of all papers filed in the case, no such duty devolved upon it to keep watch of the files and the docket to see whether or not the judgment in favor of Hull had been transferred to another. The payment to Hull having been made by the defendant in error in good faith, and without notice of the assignment, was a valid payment and discharg’ed the debt.

Judgment affirmed.  