Rogers v. Hendrick , 85 Conn. 260 ( 1912 )

The writ of error alleges that the Superior Court erred in overruling the plaintiff's demurrer to the plea in abatement, and in rendering judgment for the defendant upon an issue outside of the issues appearing in the pleadings.

Ordinarily a plea in abatement does not go to the merits, but to the form of an action. There are, however, exceptions to this rule, and there are cases in which the same matter may be reached by plea in abatement, plea in bar, by demurrer, or by an answer of general denial. 1 Swift's Digest, s. p. 606.

Apparently the defendant's purpose was to allege by the plea in abatement that there was no proper party plaintiff in the action, because the nominal plaintiff was not the owner of the judgment upon which the suit was brought. It is to be noticed, however, that to accomplish such purpose, the defendant did not allege as a fact that the plaintiff as an attorney purchased the judgment in question for the purpose of making a gain by bringing a suit thereon, and that he was thereby guilty of the crime of maintenance, nor that he took the assignment of the judgment for the purpose of speculating in a lawsuit, nor that the plaintiff was not in fact the equitable and bona fide owner of the judgment. Had the plea in abatement contained these averments, a demurrer to it, or a traverse of it, would have raised a very different question from that presented by the demurrer to the plea as made.

With the exception of the averment that the plaintiff was an attorney at law, which was admitted by the demurrer and afterward by the answer to the plea, every averment of the plea in abatement is based upon the express averment that the alleged misconduct and improper and illegal purpose of the plaintiff in purchasing the judgment, and the fact that the plaintiff was not the equitable and bona fide owner of the judgment appears from the allegations of the complaint. Therefore, the only issues raised by the demurrer to the plea in abatement, or by the subsequent traverse of it after the demurrer was overruled, were whether from the averments of the complaint in that action, read in connection with the admitted fact that the plaintiff was an attorney at law, it appeared that the plaintiff was guilty of the crime of maintenance, or that he purchased the judgment for the purpose of bringing a suit for the purpose of speculation, or for his own gain, or that he was not a proper party plaintiff since he was not the equitable and bona fide owner of the judgment. As these were the only issues raised, they were, of course, the only issues which could be decided, and they were, therefore, the issues which the judgment-file states were decided in favor of the defendant, and the finding of which formed the basis of the judgment.

The record does not show that the Superior Court ever held, excepting as a legal inference from the averments of the complaint considered in connection with the admission that the plaintiff was an attorney at law, that the plaintiff was not in fact the equitable and bona fide owner of the judgment at the time the action was commenced.

It seems to be claimed by the defendant that the memorandum of decision, filed after the answer denying the averments of the plea in abatement, shows that the court found as a fact that the plaintiff was not the owner of the judgment. If it had so found, such a finding would have been outside of the issues framed. But while a mere memorandum of decision may, under certain limitations and to aid an appeal, be resorted to as indicating a conclusion of law controlling the decision (Cummings v. Hartford, 70 Conn. 115, 124, 38 A. 916;Phoenix Ins. Co. v. Carey, 80 Conn. 426, 433,69 A. 993), it cannot, unless made a part of the record, be treated as a finding of facts. Phoenix Ins. Co. v. Carey,supra. In the absence of any finding of facts, we can look only to the judgment-file to determine what issues the Superior Court says it decided, and we must look to the issues themselves to determine whether such finding supports the judgment rendered.

The Superior Court erred in holding that because it was admitted by the pleadings that the plaintiff was an attorney at law that it appeared from the averments of the complaint that in taking an assignment of the judgment the plaintiff was either guilty of the crime of maintenance as defined by § 1351 of the General Statutes, or of purchasing the judgment for the purpose of speculating in a lawsuit, or of making gain for himself by the purchase of the judgment and the bringing suit thereon in his own name, or that it appeared from such averments that the plaintiff as such attorney was not an equitable and bona fide owner of the judgment, and that he was therefore not a proper party plaintiff.

The laws regarding champerty and maintenance, in so far as such offenses exist in this State, are somewhat modified by statute. Richardson v. Rowland, 40 Conn. 565.

Section 1351 of the General Statutes provides that "every attorney, sheriff, deputy sheriff, or constable, who shall, with intent to make gain by the fees of collection, purchase and sue upon any choses in action, shall be fined not more than one hundred dollars."

The averments of the complaint in the action upon the judgment are not susceptible of the construction placed upon them by the Superior Court as to the unlawful or improper conduct of the plaintiff in purchasing the judgment and bringing an action upon it in his own name, unless our law absolutely forbids an attorney from purchasing a judgment and bringing an action upon it in his own name.

As this was a transfer of a judgment against the defendant, the validity of which judgment does not appear to have been open to question, the plaintiff may very reasonably have believed that his assignor's right to the amount of the judgment could no longer be contested, and that there would be no occasion for bringing a suit upon it. The purchase of a judgment is not the purchase of a litigious claim. McMicken v. Perin, 18 How. (U.S.) 507; Schaferman v. O'Brien, 28 Md. 565.

There is no suggestion in the averments of the complaint in the action in the Superior Court that the assignment was taken by the plaintiff for the purpose of making gain for himself by the fees of collection. That it appears from the averments of the complaint that the plaintiff, though an attorney, had any such unlawful purpose, or that he was not a lawful party plaintiff, can hardly be said of this complaint, which expressly alleges that the plaintiff is the actual bona fide owner of the judgment sued upon, and in which the alleged time and manner of acquiring title thereto describe a valid assignment, unless, as we have said, it be the law that an attorney cannot purchase a judgment and bring, or cause to be brought, an action upon it in his own name, or unless there arises a presumption that an attorney who purchases such a judgment and, the day after such purchase, causes an action to be brought upon it in his own name, has violated the statute against maintenance, or a presumption that he is not the actual and bona fide owner of the judgment sued upon.

There is no such presumption. Section 631 of the General Statutes gives the right to the assignee and equitable and bona fide owner of any chose in action, not negotiable, to "sue thereon in his own name," alleging in his complaint that he is "the actual, bona fide owner thereof," and "when and how he acquired title thereto." The complaint alleges an assignment for value, and contains the other averments required by statute. The statute makes no exception in case the assignee is an attorney at law. This statute gives the assignee, although he may be an attorney at law, the right to bring an action in his own name, containing the required averments, upon a judgment, an assignment of which he has taken for value and in good faith, unless the bringing by him of such an action is forbidden by some other law.

There is no such law in this State. An attorney at law, acting in good faith and not for the purpose of exciting or maintaining litigation, or making gain by the fees of collection, or for the purpose of giving jurisdiction to certain courts, or for any other unlawful purpose, may purchase a judgment for value and bring a suit upon it in his own name without violating the law regarding barratry, champerty, or maintenance, or any rule of public policy, or the provisions of § 631 above quoted.

"It is now the well-nigh universally accepted doctrine that the bona fide purchaser or assignee of a mere right of action is not guilty of champerty or maintenance; nor will the fact that it may become necessary for the assignee to institute legal proceedings to protect the thing assigned from unjust claims brought against it invest the transaction with the character of maintenance." 6 Cyc. 855. It does not appear that the assignor was the plaintiff's client.

It must be assumed from the averments of the complaint to which the plea in abatement was filed, that the plaintiff purchased the judgment and gave value for it. It does not appear from the complaint that the assignor is to receive any part of the judgment when collected, nor that he retains any interest whatever in it. It is consistent with the averments of said complaint that the plaintiff in good faith received the assignment of the judgment as the only method of obtaining satisfaction of a debt due him from the assignor, and with no thought of making any gain or profit by the transaction.

It the defendant had desired to claim that the action in the Superior Court was not properly brought in the plaintiff's name because he was not a bona fide assignee, he should either have alleged in his plea in abatement, as facts, that the assignment was taken by the plaintiff for the claimed unlawful purposes, or that under the contract of assignment the plaintiff, for reasons set forth in the plea, was not the equitable and bona fide owner of the judgment, or should have denied the averments of the complaint respecting the plaintiff's actual good-faith ownership of the judgment, or the alleged manner in which he acquired title to it, instead of alleging, as he did, that such facts were disclosed by the averments of the complaint.

The Superior Court erred in holding that the plea in abatement was sufficient, and that it appeared from the allegations of the complaint that the plaintiff was not the lawful owner of the judgment sued upon, and in dismissing the action upon those grounds.

There is error, the judgment of the Superior Court is reversed, and the case remanded to said court to be proceeded with to final judgment according to law.

In this opinion the other judges concurred.