Dray v. Mayer

5 Or. 185

• Court: Oregon Supreme Court
• Decided: August 15, 1874
• Status: Published

Opinion

By the Court,

McArthur, J.:

This is an appeal from a judgment rendered in the Circuit Court for the County of Multnomah. Previous to the commencement thereof, Mayer brought an action in á Justice’s Court in said county against one McIntyre, who, in due form, made a motion under § 10 of Justices’ Code, that the plaintiff therein, Mayer, give security for costs. This motion was allowed and the required undertaking was given, with one Musgrove as surety. The trial in the Justice’s Court resulted in a judgment in favor of Mayer. McIntyre appealed to the Circuit Court, and the trial therein resulted in favor of McIntyre, who recovered a judgment against Mayer for his costs and disbursements in both the Circuit and the Justice’s Court. This judgment was assigned by McIntyre to Dray, who brings this present, action upon the undertaking. There was no assignment of the undertaking. The simple question presented to this Court for consideration is, whether, when the judgment of the Circuit Court was assigned, it carried with it as a necessary incident the undertaking given in the action in the Justice’s Court. Under our view of the law this, undertaking was a separate and independent contract between McIntyre, on one side, and Mayer, as principal, and Musgrove, as surety, on the other. We are of the opinion that the assignment of the judgment could not carry with it the undertaking so as to affect the rights of Musgrove. That is to say, in this action Dray cannot recover upon the undertaking against Mus-grove, he (M.) not being a party to any of the suits or actions, being, as just stated, simply a surety for Mayer in the undertaking in the original action in the Justice’s Court. This view of the law is sustained by the case of Moses v. Thorne (6 Cal. 87). This action having been brought by Dray upon the unassigned undertaking, is not brought in the name of the real party in interest in the undertaking— McIntyre being such real party in interest.

Judgment reversed.