Campbell v. Shipman

87 Va. 655 | Va. | 1891

Lacy, J.

(after stating the case), delivered the opinion of the court.

It is a concession m the case that the appellant in this case (the plaintiff in the circuit court) has no interest whatever in any recovery which might be had in this case. The notes sued on were executed by Shipman and endorsed by Fletcher, and purchased by Campbell, Shipman and Fletcher being at that time partners in business, contractors on the public and other works of the District of Columbia.

The matters of business between Shipman and Fletcher had resulted in litigation, and had at one. time been submitted to arbitration, and there had been an award, which gave to Fletcher $1,291.96 in full of all demands up to February 7^ 1877. And Fletcher appeared at one time in this suit and filed this award against Shipman, but Shipman instituted suit in the circuit court of Alexandria city to set aside the award for misconduct of the arbitrators, and for other causes, in which he finally succeeded, and which may be found reported in 82 Va., 601.

The suit between Shipman and Fletcher, after the award had been finally set aside, was proceeded with in the said court* where it still is. In this suit, which is for the settlement of the partnership accounts and dealings of the said Shipman and Fletcher, the said Fletcher has filed the notes sued on in this suit by Campbell, and there he has claimed them as a credit against Shipman because he has paid them, whereas Shipman, as maker, was primarily bound for their payment. What the result of this suit is, or will be, we do not know. But upon the ground that Campbell has no interest in this suit, and that he is sole plaintiff and sole appellant, the appellee, Shipman, moves the court to dismiss this appeal. The said Fletcher is not a party to this suit, either as plaintiff or defendant, but counsel appear here, as they did in the circuit court, and claim to represent Campbell for the benefit of Fletcher, who is the party alleged to be the real party in interest. It is a general rule in equity that every party interested in any suit must be made a party to the suit either as plaintiff or defendant, and the real party in interest must be the complainant; and it is immaterial that the interests of the defendants are in conflict with each other, or that some of their claims are identical with those of the plaintiff Equity deals with the real parties in interest. Castleman v. Berry, 86 Va., 606; Kellam v. Sayer, 30 W. Va. Rep., 198; Field v. Maghee, 5 Paige, 540; Mason v. York River R. R. Co., 52 Me., 82; Mills v. Hoag, 7 Paige Ch., 18; 2 Dan. Ch. Pr., 1517, note; Johnson v. Thomas, 11 Beavan, 501; Solomon v. Solomon, 13 Simons, 516.

In Mills v. Hoag, supra, it was said by Chancellor Walworth : “But even if purchases of this kind (purchase of the plaintiff’s interests) were both legal and meritorious, the right of appeal is gone, and cannot be restored by amendment, as the appeal is not in the name of the proper parties. In this court the proceedings must be carried on in the names of the real parties, só far, at least, as the rights of the complainant are concerned, although there has been a change of interest subsequent to the commencement of the suit; but the rights of the adverse party cannot be prejudiced by any sale of the subject-matter of the suit, merely voluntary, pendente lite. When the complainant sells his whole right in the suit, or it becomes wholly vested in another by operation of law, whether before or after a decree, if there is to be any further litigation in the case, it cannot be carried on in the name of the original complainant by the person who has acquired the right. And if the complainant’s interest is determined by voluntary assignment, the assignee must make himself a party to the suit by an original bill, in the nature of a supplemental bill, before he can be permitted to proceed. Mitford’s Pleading, 65. The complainant, therefore, was not the proper party to appeal after he had sold all his interest to others; and this court will not permit the appeal to be carried on in his name for their benefit.”

In Johnson v. Thomas, supra, Lord Longdale, Master of the Rolls, said : “The suit is clearly defective. How is it possible to proceed with it in its present form when the subject has been transferred to a person who is not a party? The defendant, in truth, is called on to combat a shadow, and not the real opponent. It is not possible to make any decree with the knowledge of this fact.”

In Solomon v. Solomon, supra, Vice-Chancellor Shadwell said : “IJere I find the fact that all the adult plaintiffs have parted pro tanto with the whole of their interest to a mortgagee; and my opinion is that, unless their mortgagee is made a party, the suit cannot proceed.”

It is clear that Campbell has no interest in the notes sued on, and that, not being a creditor of Shipman, he has no interest to serve in setting aside the voluntary deeds made by Shipman to Rice, and that he was not aggrieved by a decree dismissing a bill in which he had no interest, and that his-appeal here cannot be sustained; but it is equally clear, and for the same reasons, that the circuit court did' err in dismissing the bill in the cause. Campbell had no just claim of any sort against Shipman on the notes sued oh, which have been paid in full and surrendered by him to a person not a party to this suit, and who would not, therefore, be affected by any decree rendered in the cause. Campbell is without any legal demand against any defendant in the cause, and he is the sole plaintiff. It was therefore right to dismiss his bill, and there was no error in the said decree of the circuit court to that end, and the same will be affirmed.

Richardson, J., dissented.

Decree aeeirmed.