delivered the opinion of the Court:
This is the second of two appeals growing out of one suit. The controversy is over the proceeds of a judgment recovered by S. P. Brown against the Baltimore and Potomac Railroad Company in an action of damages for personal .injuries. The railroad company filing the bill of in-terpleader paid the money into the registry of the court and was discharged with its costs. The first appeal involved the priority of the claim of the attorneys to a part of the fund that had been realized through litigation conducted by them to a successful issue, and was decided in their favor. 7 App. D. C. 548.
The question here involved is of priorityto the remainder of the fund between Chapin Brown, the. assignee of the judgment, and the appellant,,the attaching.creditor.
The record shows that the jury returned a sealed verdict for the plaintiff in the damage suit, which was received and read in open court on the morning of March 15, 1892. During the same morning the judgment on said verdict was actually entered in the minutes, according to the prevailing custom, though regularly it should have been withheld until after motion for new trial had beep made and overruled, for there was no rule in force changing that of the common law. Walter v. B. & O. Railroad Co., 6 App. D. C. 20.
*161In expectation of a verdict for the plaintiff, appellant had caused writs of attachment, upon certain unsatisfied judgments against S. P. Brown, to be prepared, ready to be signed, issued, and served upon the defendant. Chapin Brown, the son of the plaintiff, and claiming to be a creditor, anticipating the same result, had caused an assignment of the judgment to be executed by the plaintiff to him, as well as an order to the clerk to enter the same to his use.
Those, instruments were at once delivered to Chapin Brown, who went immediately from the court room to the office and presented them to the clerk. At the same time, counsel for the appellant was preparing an order to the clerk, at his demand, to issue the writs of attachment, and the clerk informed him of the assignment and order aforesaid. The attachments were issued and served on the railroad company on the same day.
The defendant in' that suit, however, filed a motion for a new trial on March 17, which was not acted on finally until about May 7, when it was overruled upon the plaintiff’s entry 'of a remittitur in the sum of $2,800, whereby the judgment was reduced to ,$4,700.
Chapin Brown claimed that his father was indebted to him in a large sum for advances made to him from time to time, and that the assignment was made in consideration thereof. The foundations of this claim are rather vaguely stated, but no attack was made upon it, and for that reason, possibly, its particulars were not entered into. The decree was in favor of Chapin Brown for the whole of the fund remaining after the payment of the charges of the attorneys.
It is contended on behalf of the appellant, that the entry of judgment upon the verdict was irregular, and of no legal effect; that the judgment could not be entered and could have no effect until after the motion for new trial had been overruled ; and that no assignment could be made of a mere claim for damages in such an action, that being its legal status at the time the assignment was executed and delivered.
*162It was held and properly so, in the case of Walter v. B. & O. Railroad Co., 6 App. D. C. 20, that, under the rule of the common law, in force in this District, the judgment should not be entered upon a verdict until after the lapse of four days ; and if, during that time,, a motion for a new trial should be made, not until disposition thereof. In that case the judgment had in fact been entered immediately after verdict, and the question arose on the appellee’s mption to dismiss because the appeal had not been taken within twenty days thereof, though within twenty. days from the time the motion for new trial had been overruled.
In the absence of a controlling statute, the time from which a judgment may be said to have effect, that is to say, the time- at which the cause of action shall be considered as having become merged in the judgment, must necessarily depend, to a great extent, upon the operation sought to be given it.
The question as it occurs 'in this case is a very different one from that presented in the case cited above. There the losing party could not know that he had anything to appeal from until his motion for new trial should be disposed of. The judgment, improperly entered at the time, was not absolutely void, though it had no effect in so far as the right of appeal was concerned until the motion had been overruled ; for other purposes it might, notwithstanding, have related back to the very moment when the verdict was j-eceived.
The judgment is the necessary'Iegal consequence of the receipt of the verdict; it is the operation of the law: The entry of the judgment is a ministerial act to be performed by the clerk. It is the evidence of the judgment that has been pronounced by the court. Black on Judgments, sec, 106 ; Freeman on judgments, 38 ; 3 Blackstone Com. 396.
As a result of that doctrine, it has been often held that a judgment may be entered nunc pro tunc, as of the date of the verdict, where the plaintiff has died pending the motion of the defendant for a new trial ; and it makes no efif-*163ference that the action may be one that does not survive. Griffith v. Ogle, 1 Binney, 172; Brown v. Wheeler, 18 Conn. 199, 207; Black on Judgments, secs. 127, 128; Freeman on Judgments, sec. 38. See also. Mitchell v. Overman, 103 U. S. 62, 65. In this last case the Supreme Court approved the entry of a final decree in equity as of the date of the submission of the cause, where the complainant had died thereafter.
For the purposes of this case, our conclusion is that the claim for damages must be considered as having ripened into judgment when the verdict was received. This view is not affected by the circumstance that the judgment was in fact entered immediately thereafter; for had it been withheld until after the motion for new trial had been acted upon, it would relate back to the same time.
Whenever it is important, in the interest of justice, as, for instance, in the determination of priorities and the like, the fictions of - law will be disregarded, and inquiry permitted into the very time that judgment was pronounced or action taken. Anderson v. Tuck, 33 Md. 225; Newhall v. Sanger, 92 U. S. 761.
Under the conclusion reached as regards the time when the judgment took effect, the question raised as to the right to assign a right of action for damages for personal injuries has become unimportant and need not be decided. It may be said, however, that the general test of assignability seems to be, whether, by the laws in force in the particular jurisdiction, the action is one that will survive. Comegys v. Vasse, 1 Pet. 193, 213; Final v. Backus, 18 Mich. 218, 231; 3 Pom. Eq. Jur., sec. 1275.
Conceding the invalidity of an assignment of such a claim in this District, it does not follow that it would not be given effect in equity as an assignment of a possibility or expectancy, capable of enforcement a.s an assignment of, or a charge upon, a subsequent judgment thereon, or its proceeds. Baylcr v. Commonwealth, 40 Pa. St. 37; Stone v. Eycleshimer, 42 N. Y. 620 (3 Keyes, 620); Adams Eq. *16454, 55; 3 Pom. Eq. Jur., sec. 1287; 2 Story Eq. Jur.; secs. 1040, 1040b.
The doctrine, so firmly established, that attorneys may, by contract at the commencement of litigation, obtain an assignment of part of the judgment to be recovered in an action of damages, that will be enforced as against the assignor and his creditors, can rest upon no other logical foundation.
The testimony is involved in some confusion, by reason of conflicting endorsements of the hour of the day upon the papers filed and issued, as to whether the attachments were signed, ready for execution, before the delivery to the same clerk of the assignment and the order to enter judgment to the use of the assignee ; but there can be no doubt that these occurred before,.,service xsf the attachments was had upon the defendant in the judgment.
It is conceded that the lien., of- the • attachments could operate from the time of service only, and it remains to consider whether, as against the attaching creditor, notice of the assignment, to render it complete, must also have been given to the defendant in the judgment.
Without pausing to consider whether, as the defendant was still in court, notice to it of the assignment of the judgment and the order of entry to the use of the assignee, would be presumed, we are of the opinion that notice was not necessary to the perfection of the assignee’s right to the fund. Spring v. S. C. Ins. Co., 8 Wheat. 268, 288; Dix v. Cobb, 4 Mass. 508; Thayer v. Daniels, 113 Mass. 129, 131; Pullman v. Hart, 1 Pa. St. 263; Drake on Attachments, sec. 608.
It follows from the conclusions announced that the de-erec must, be affirmed. In consideration of the nature of the case, the costs of appeal will be paid out of the fund in the registry of the court. It is so ordered.