Ashby v. Winston

26 Mo. 210 | Mo. | 1858

Richardson, Judge,

delivered the opinion of the court.

The instrument of writing executed by Dorris to the plaintiff operated as an equitable assignment of the notes mentioned in it, and carried with it the right of the plaintiff to control the suit and to take the fruits of the judgment when obtained to the extent of satisfying the debt owing by Dorris and Kerr; and if Winston had notice of the plaintiff’s interest he was bound to treat him as the real owner, and had no right to compromise the suit without the plaintiff’s consent. Only one cause of action is disclosed in the petition. It is alleged that Winston, with full notice and in fraud of the plaintiff’s rights, compromised the suit and paid the money to Dorris; and this allegation, in connection with the averment that Dorris and Kerr are insolvent, makes it appar rent that the real controversy is with Winston.

The prayer for judgment against all the defendants does not determine the character of the action ; for, as the form of the action must be determined by the matter set forth in the petition and not by the name which the plaintiff may give it, so the plaintiff is not limited, where there is a defence, to the relief asked in the petition; but the court may grant any relief consistent with the case made and embraced within the issue. (R. C. 1855, p. 128, sec. 12.)

When several causes of action are improperly united, any defendant may demur; but when the objection arises on the face of the petition that there is a joinder of improper parties as defendants, it can only be raised by the demurrer of the party improperly joined. (Story Eq. Pl. § 237; see Pinckney v. Wallace, 1 Abbot P. R. 82.) Winston and Dorris were proper and necessary parties to the suit, and neither of them therefore could demur for the misjoinder of Kerr.

With the concurrence of the other judges, the judgment will be reversed and the cause remanded.