51 Tex. 165 | Tex. | 1879
Pannell, as the payee and legal holder of the draft sued on, was authorized to maintain an action thereon in his own name, whoever may have been the equitable owner. Unless there was some defense as against the other alleged equitable owners or beneficiaries of the draft, the answer denying Frank Noland’s ownership presented an immaterial issue. (Lipscomb v. Ward, 2 Tex., 277; McMillan v. Croft, 2 Tex., 399, and other cases cited in the brief of appellees.)
Notwithstanding the suit was brought by or in the name of Pannell for the use of Frank Noland, there is no presumption in favor of defendants that this was done without Pannell’s assent and authority. In case of a suit in the name of an assignor for the use of his assignee, the nominal plaintiff is not presumed to be present in court, cognizant of the proceedings in the case, so as to subject him without further notice to a judgment in reconvention. (McFadin v. MacGreal, 25 Tex., 78.) Whether even in such cases there was at common law an unqualified right to use the name of the holder of the legal title, admits of some question. (1 Chit. Pl., 9a; 3 Chit. Prac., 127; Spicer v. Todd, 2 Tyrw., 172; Chambers v. Donaldson, 9 East, 471; Moseley v. Boush, 4 Rand., 392.) It appears from these authorities that in some cases, at least, the holder of the legal title might require to be indemnified against costs. But, at all events, no authority has been adduced justifying the assumption in favor of the defendants, for the purpose of defeating the recovery, that this suit was not brought, as it is purported to be, with the assent and by the authority of Pannell. If Pannell’s name was used without authority, the defendants might, as in other cases of the institution of suits without authority, by showing cause therefor, at the proper time and in the proper manner, have obtained protection. (Campbell v. Galbreath, 5 Watts, 423.)
The plea that Pannell had become non compos mentis was in the nature of a plea in abatement, and not being sworn to, was bad on general exception. (Cook v. Thornhill, 13 Tex., 297; Mitf. Ch. Pl., 268.) By the mere filing of such a plea on the day set for trial, the further progress of the case cannot be stopped until the question of the plaintiff’s sanity be investigated.
Without deeming it necessary to pass in detail on other questions, our opinion is, that there is no error in the judgment, and it is accordingly ordered that it be affirmed.
Affirmed.