Opinion
No. 32867.
November 1, 1937.
PARTIES.
Under statute authorizing amendment of pleadings or proceedings at any time before verdict, substitution by amendment on new trial of one plaintiff suing in his own right for another who had instituted action in his own right was not authorized (Code 1930, section 567).
APPEAL from circuit court of Wilkinson county. HON. R.E. BENNETT, Judge.
Jones Stockett, of Woodville, for appellant.
The circuit court should have dismissed the case of Charlie Credit because of his want of title and lack of interest in the matter. His declaration alleges: ". . . and the plaintiff fearing to sue the defendant for money repeatedly refused him, on that day, August 7th, 1936, transferred and assigned the said sum of Three Hundred Forty-two and 83/100 Dollars to said W.F. Tucker, his attorney, to be collected by suit and paid plaintiff less fee for legal services in collecting said sum, a copy of said assignment marked Exhibit "B" is filed with the original declaration in this case and is now made a part of this amended declaration." When we refer to the original declaration, we find that one W.F. Tucker is plaintiff; that he demands judgment against this appellant for $342.83; that this was due him because Charlie Credit has transferred it to him "by a duly written, executed and properly acknowledged assignment; a copy of said assignment, marked Exhibit "D" is filed herewith and made a part of this declaration."
The assignment shows a valid and binding transfer to Mr. Tucker for value, and under it the entire title was vested in him.
The amended declaration admits this; it admits that it is still in force and effect. There is not one word, or one act, or one hint that this assignment was ever cancelled, or that it had ever been reassigned to the plaintiff.
We, therefore, submit that no one can sue in his own name for a debt he admits is owned by some other person, and in which he as plaintiff can have no interest.
The circuit court erred in substituting Charlie Credit as plaintiff for W.F. Tucker. The motion for leave to prosecute in his own name shows that Credit was assignor, and that W.F. Tucker was assignee. No explanation was given, and even at that late date the appellee did not claim to own the cause of action but styled himself in the motion, as he had done in his declaration, as assignor.
We submit that this substitution of a new party as plaintiff was unauthorized and illegal.
Railroad Co. v. Maples, 107 Miss. 720, 65 So. 644. Clay B. Tucker, of Woodville, for appellee.
The appellee could not legally assign his claim for the money, the proceeds of his bonus bonds, and that fact won for appellant a new trial at the October, 1936, Term of circuit court.
38 U.S.C.A., sections 686 and 686c.
Section 567, Code of 1930, provides: "The court shall have full power to allow all amendments to be made in any pleading or proceeding at any time before verdict, so as to bring the merits of the controversy between the parties fairly to trial, and may allow all errors and mistakes in the name of any party or in the form of the action to be corrected. . . ."
The court on application of the appellee permitted the form of this action to be amended by substituting the real party in interest for the assignee suing for his interest, as authorized by said Section 567.
McCue v. Massey, 90 Miss. 124, 43 So. 2; Jones v. Clemmer Son, 98 Miss. 508, 54 So. 4; Greenwood Grocery Co. v. W.B. T.R. Bennett, 101 Miss. 573, 58 So. 482.
Section 505, Code of 1930, provides: "the assignee of any chose in action may sue for and recover on the same in his own name, if the assignment be in writing. In face of an assignment of any interest in such chose in action before or after suit brought, the action may be begun, prosecuted and continued in the name of the original party."
Central National Bank v. Perry, 136 Miss. 445, 100 So. 276; Bolivar Compress Co. v. Mallett, 139 Miss. 213, 104 So. 79.
In the case at bar the appellant does not even claim the money in controversy, he is holding same for his friend, J.P. Morgan, who is not a party to this suit, but is mentioned in appellant's pleadings as one who claims the money belonging to appellee.
Solomon v. Continental Baking Co., 174 Miss. 890, 165 So. 607; Kelly v. Continental Cas. Co., 87 Miss. 438, 40 So. 1.
We respectfully submit that this case should be sustained and the proper judgment entered here against the appellant.
W.F. Tucker brought an action, in his own right, in the circuit court of Wilkinson county against appellant. He recovered a judgment. A motion for a new trial was sustained; whereupon the appellee by amendment was substituted as plaintiff in the case in his own right, and on the trial recovered a judgment against the appellant. From that judgment appellant prosecutes this appeal.
One ground urged for reversal is that the court erred in permitting by amendment the substitution of one plaintiff suing in his own right for another who had brought the suit in his own right. The amendment was unauthorized. Mississippi Cent. R.R. Co. v. Maples, 107 Miss. 720, 65 So. 644, 645. In that case section 775, Code of 1906, was construed. Section 567, Code 1930, is in the identical language of that statute. The court there said: "Our statute on amendments is very liberal, but in no case have we found that an amendment has been allowed whereby another and entirely different plaintiff was substituted for the party who had instituted the suit."
Reversed and dismissed without prejudice.