Carpenter v. Miles

56 Ky. 598 | Ky. Ct. App. | 1856

Judge Stites

delivered the opinion of the court:

A defect of parties, apparent upon the face of the petition, is cause for demurrer; and when not thus apparent, is an objection to be taken in answer. (Civil Code, sec. 123.)

An answer presenting such objection, may be regarded as a dilatory plea; not, however, resulting, even when sustained by proof, in a dismissal or abatement of the action, but furnishing a ground for an order of court requiring the additional parties to be made, on pain of dismissal without prejudice.

The defect of parties here did not appear in the petition, and the objection was properly taken by answer. That Wilson was the actual beneficiary of the suit, and equitable holder of the note, appeared by the response of the plaintiff, who urns the payee, to defendant’s interrogatories. The payee was a proper party, but Wilson, the beneficiary, was a necessary party, and the suit could not have rightfully proceeded without his being a co-plaintiff.

The answer was sustained by the plaintiff’s response, showing Wilson’s interest; and although not presenting in bar of the action, certainly did present an obstacle to a recovery until the necessary parties were made, and was, so far as it professed to go, sufficient upon demurrer. The demurrer to it ought to have been overruled, and the plaintiff required to make Wilson a co-plaintiff, and in failing to comply, have been dismissed without prejudice. (Civil Code, sec. 400.)

It appears, however, that Wilson did apply to be made a party, and was denied; but when he applied, or whether his application was resisted by plaintiff, does not appear.

It is not certain that the substantial rights of appellant have been prejudiced by the judgment, but as the Civil Code {section 30) requires peremptorily an action to be prosecuted in the name of the real party in interest, and as the court refused to require Wilson, who was the real party in interest, to be made a co-platiniff though the objection for defect of such party was taken in pr oper time and manner, and the ground made manifest by the plaintiff’s showing, we feel constrained to reverse the j udgment for that reason.

The judgment is reversed, ánd cause remanded with directions to the circuit court to set the same aside, and require Wilson to be made a co-plaintiff, and for other proceedings consistent with thisjjopinion.