12 Minn. 375 | Minn. | 1867
By the Court
This is an appeal by tbe plaintiff, Chisholm, from an order setting aside tbe judgment. This action was brought by Chisholm, to foreclose a mortgage given by tbe defendant Clitherall, to one Gibbs, and assigned by Mm to tbe plaintiff. When tbe action was commenced does not definitely appear, but we gather from tbe affidavits in tbe paper book, that it was some time between 1861, and tbe 9th of October, 1863. On tbe 30th of April, 1866, tbe following stipulation was entered into between tbe parties of
Kobert Chisholm, Plaintiff.
John L. MacDonald, Attorney for Plaintiff.
L. M. & J. H. Brown, Att’ys. for Def’t. Spencer.
Dated April 30th, 1866.
At the November term, 1866, a judgment or decree reciting the filing of the report of the referee, &c., was entered, in pursuance of the stipulation. On the 4th of January, 1867, on the affidavit of one George A. Gifford, showing as is claimed, that the note and mortgage on which the action is founded, have, since the commencement of this action, been sold and assigned to him, and the decree in said action was signed and entered since the said assignment, and without his knowledge or consent, an order was granted that the plaintiff Chisholm and defendant Spencer, show cause, &c., why the decree should not be set aside and vacated, &c. On the return of the order, the plaintiff Chisholm opposing, and neither of the defendants appearing, the decree was vacated. It in no manner appears that the order was served on the defendant Spencer. The only evidence introduced at the hearing of the rule, was the affidavit of Gifford, and the
It was evidently the intention by Seo. 26 above cited, to adopt the equitable rule in all actions, and to change the rule of law which required the party in whom the legal title, irrespective of the equitable title, existed, to bring the action; the effect,' therefore, of the sections was to require the assignee of a chose in action, being the equitable owner, to prosecute the action in his own name. This principle being-recognized, it follows that in case of transfer of interest pendente lite, the action, in the absence of statutory provision, would abate. Seo. 36 prescribes the rules which shall govern in actions where the events, embraced in the section, affecting the action transpire subsequent to its commencement. This, in the case of a voluntary transfer of interest pendente lite, so far as the substantial rights of the parties are concerned, does not, we think, change the effect of Seo. 26, but only the mode of proceeding. The real party in interest must prosecute the action, but it may be continued in the name of the original party. When the transfer is made, the rights of the assignor terminate, and he can take no further step in the action, and the assignee will be recognized in all future proceedings, although he may proceed in the name of the assignor.
The order setting aside the judgment is reversed.