Dissenting opinion of
Thompson, J.It is my misfortune not to be able to agree with my learned brethren in this case. The judgment in this case was assigned to Smith & McCann upon the record of the *519•circuit court, before the appeal was taken to the supreme court. The judgment which was affirmed by the supreme court was Smith & McCann’s judgment. As the case stands here, it is not different from the case which would have been presented if Patrick Welch had died after the affirmance of the judgment by the supreme court, since it is not competent to any other court to take into consideration the fact that Patrick Welch died before that date, for the purpose of invalidating, or in' any other way affecting, that judgment. This conclusion is, I think, made sufficiently clear by the opinion previously filed.
Smith & McCann, then, are the owners of a judgment standing in the circuit court, which was originally recovered by Patrick Welch, who, since the recovery of the judgment, has died ; and the only question is, whetherthey can take out execution in the name of Patrick Welch, who is dead. I think they can. Our statute authorizes the assignment of judgments. Bev. Stats., sect. 2762. It also provides that “ payments or satisfaction on said judgment to the assignor shall be valid, if made before notice of the assignment to the judgment debtor, but not otherwise.” Ibid., sect. 2763. Here Eyermann, the judgment debtor, has notice of the assignment, and, hence, it would not be competent for him to pay the judgment to any one but Smith & McCann; nor would it be competent for the sheriff, after collecting the money from Eyermann, to pay the judgment to any one except Smith & McCann. An administrator of Patrick Welch would have no more to do with this judgment than Patrick Welch would have if alive, and that would be nothing at all. Section 2764 of the Bevised Statutes, which prescribes the manner in which the execution shall be issued where the judgment has been assigned, does not require that the execution should issue in the name of the legal representative of the deceased plaintiff. It does not refer, at all, to the case of a deceased *520plaintiff. It merely says : “ In case of assignment, execution shall issue in the name of the original plaintiff, but shall be indorsed by the clerk or justice to be for the use of the assignee.” Now, if we are to adhere to the letter of the statute, this execution could only issue in the name of the original plaintiff, Patrick Welch, indorsed to the use of Smith & McCann, as was done. As the original plaintiff is prohibited by the preceding section from receiving payment, it is obvious that his name on the execution is a mere naked name of record, — a formal name, intended merely to identify the execution and connect it with the judgment under which it issues. The name being, then, a mere formal name, for the purpose of identification, it seems to me to be wholly immaterial whether it is the name of a living man or a dead man. It seems to me, therefore, that both the letter and the spirit of section 2764 agree in this instance. .
Now, what is the effect of the other view? It drives Smith & McCann to the delay and expense of procuring some one to take out letters of administration upon the supposed estate of Patrick Welch; a man who, it is shown by the affidavits, died a pauper, and without any estate. And for what purpose? For the naked purpose of having the name of such administrator on their execution — a name without substance, for the administrator, under section 2763, could have no more to do with it than Patrick Welch in his grave could have. But I do not see how they can procure such letters of administration. Patrick Welch, as shown by the affidavits, lived an object of charity, and was buried by the public as a pauper, at Greenville, Mississippi. How can Smith & McCann procure the appointment of an administrator upon his estate without showing that he had an estate to be administered ? They cannot show that this judgment belongs to him for the purpose of getting such letters ; for that would be to make an admis*521sion, the effect of which would be to give away to the creditors or to the next of kin of Patrick Welch, that which belongs to themselves.
I know that section 2742 of the Revised Statutes recites that, “if one or more plaintiffs in a judgment or decree shall die before the same is satisfied or carried into effect, the judgment or decree, if concerning the personalty, shall survive to the executors or administrators of such deceased party, and if concerning real estate, to his or their heirs or devisees ; and execution may be sued out in the name of the surviving plaintiff or plaintiffs or legal representatives of the deceased plaintiff, for the benefit of himself or themselves, and the legal representatives of the deceased party, or the judgment or decree may be revived in the name of such legal representatives and the surviving plaintiffs, and execution sued out by them jointly.”
But this section, when taken in connection with the section relating to the assignment of judgments, already quoted, can obviously extend only to cases where the plaintiff who died was a beneficial plaintiff entitled to receive the money paid in satisfaction of the judgment, or his share of it, and not to cases where such plaintiff has parted, by assignment, with his interest in the judgment, before his death. That was the case in Gaston v. White (46 Mo. 486), cited in the opinion of the .court.
For these reasons, lam of opinion that the circuit court committed no error in refusing to quash the execution.