Allen v. Newberry

8 Iowa 65 | Iowa | 1859

Wright, C. J".

The pleadings in a case, unless the contrary appears, make up the issue, writh reference to the right of the plaintiff to recover, at the time he commenced his action. If a matter of defense arises after the commencement of the action, it'cannot be pleaded in bar of the action generally ; but if it arises before plea or continuance, it must be pleaded as to the further maintenance of the suit. If after plea pleaded, and before replication, or after issue joined, then_£>ms darri&n contimiance. This was the rule at common law, and the principle is not changed by our practice. 1 Chitty Pleadings, 695 ; Colden v. Rich, 7 Johns., 194; Cowell v. Weston, 20 Ib., 414. Evidence cannot be given of matter arising after the commencement of the action, whether it occurred before or after plea pleaded, unless the foundation has been laid by proper pleadings. In this case, the matter relied upon, and given in evidence, arose after the suit was commenced, but before defendant answered. He failed to set it up, however, and should not, therefore, have been permitted to rely upon it. It is true that defendant denies that plaintiff holds against him any such notes, as are set out in the petition. This averment, without more, relates to the time of commencing the action; and, at that time, there is no controversy as to who was the real party in interest, whatever may be the subsequent effect of the written agreement. But, aside from this, such an averment would not be sufficient to raise the issue, under which to offer the proposed testimony, if it could be made to relate even to the time of the plea pleaded. Giving the language used a fair and natural construction, and giving to the plaintiff the benefit of any ambiguity, it means only that it is denied that plaintiff holds such notes as are described — the design being to put stress upon the description used, rather than upon the thought that the notes sued on were held by, and had become the property of another. It, if at all, presents the issue in a negative form, when it should have been made by an affirmation, that the notes were the property of another, naming him, and that such other person was the real party in interest. Nor does the fact that the assignment (as it is called), 'was found among tlie papers, make any difference. The issue should have been presented in the proper manner, that all chance for suspicion might be removed. If properly presented, and the plaintiff' thus given an opportunity to prepare his case, he may have had much testimony to explain the paper relied upon by defendant. The first that is heard of it, however, is after the testimony is closed, and the court is called upon to instruct the jury. Under such circumstances, we think the instruction should have been refused, and that it was erroneous to direct the jury to find for defendant.

Counsel have directed their argument, however, more particularly to the force and effect of the wilting itself, and have considered the instruction as being right or wrong, according to the construction the said writing may receive. We will very briefly examine the case, as thus presented.

Civil actions are to be prosecuted in the name of the real party in interest. Code, section 1676. At law, this means the party having the legal interest; and hence it has been decided, that the holder of a note, not negotiable by delivery, nor assigned, could not sue upon it in his own name, though the real owner of it. Farwell v. Tyler, 5 Iowa, 536. In that case, there was no pretense that the claim had been assigned, or transferred in writing. In this, there is a writing, and the question is, what effect shall be given to it ? It is not denied that a note may be transferred, so as to vest the legal title in the holder, by a separate writing-; and that the indorsement or transfer need not be made upon the note itself. And, however made, if complete, so as to vest the title to it in the holder as the legal owner, he must sue in his own name, notwithstanding authority is given in the transfer or indorsement, to sue in the name of the payee or indorser. In such a case, the parties cannot make any agreement that shall have the effect of placing upon the record, a plaintiff who has no further real interest in the prosecution of the action. After an action has been commenced, however, the plaintiff may sell and dispose of the judgment he may recover, without investing the person purchasing it with the legal interest to the thiüg in action. Under such an assignment, it would be improper to substitute the holder of it as plaintiff, with the power to prosecute in his own name. And taking the writing, made in this case, in all its parts, we are inclined to either give it this latter character, or to conclude that it was not the intention to invest Nichols with the legal title to the notes.

It will be observed that it is nowhere stated that the plaintiff transfers or assigns the notes. The suit, the claim and the judgment, are spoken of as sold and transferred-language amply sufficient to enable the transferee, in equity, as between him and the plaintiff, to control the action ; and to give him equitable rights against the defendant, after notice of the transfer. And this is evidently all that was intended. The action — the suit — the judgment— is the subject of the transfer; and hence, the first part of thfe agreement refers, with some degree of minuteness, to the court where the action was pending — when it was commenced — the amount claimed, and upon what — and to the fact that an attachment had been issued. If the notes were intended to be transferred or assigned, it would seem that they would have been described and referred to particularly. Not only so, but this construction makes the instrument legally consistent. It is provided therein, that “ the suit or claim is to be prosecuted in the name of the plaintiff. ” This could not be done, if he had parted with the legal interest in the notes. By allowing it tobe prosecuted in his name, therefore, we carry out the intention of the parties, and violate no rule of construction. The opposite construction would render it impossible to do what the parties to the agreement have expressly provided should be done.

Two other queries arise: — First. The language of the law is, that civil actions shall beprosecuted in the name of the real parties in interest. If, therefore, the prosecution is commenced in the name of the proper party, can it make any difference that, after this and before judgment, the claim, or demand sued on, may have been transferred ? If this fact was shown, would it be so material as to defeat the plaintiff’s action ?

Second. "While civil actions are to be thus prosecuted in the name of the real party in interest, yet by section 1677 of the Code, it is provided that this is intended merely to prescribe a rule of practice, and is in nowise to affect substantial rights. Now, what does this mean, more than that, as a rule of practice, suits are to be prosecuted by the real parties in interest; but if substantial rights are to be affected by adhering to the rule, then it may be departed from? And therefore, if a party sells to a third person, his interest in a claim upon which suit has been brought, but stipulates that it shall continue to be prosecuted in his name, why are not substantial rights affected, if a substitution or change is held necessary ?

These queries we merely suggest. • To do more in this case, and at this time, is unnecessary.

Judgment reversed.