28 Mo. App. 210 | Mo. Ct. App. | 1887
delivered the opinion of the court.
In this case certain credits were attached by garnishment in a suit instituted before a justice of the peace, and Elizabeth Guth interpleaded and claimed credit as her absolute property, and verified her inter-plea by her affidavit, as required by section 449, Eevised Statutes. After the issue thus made came on for trial before the justice, and several witnesses had testified, the justice allowed the interplea to be amended so as to make it appear that it was prosecuted by Gustav Eaddatz. This interplea, as thus amended, recites: “Comes now Elizabeth Guth, as agent of Gustav Eaddatz, and interpleads in the above cause and states,” etc., that the credit levied upon “ was and still is absolutely the property of this claimant, Gustav Eaddatz,” etc. The justice rendered a judgment against the inter-pleader ; but against what interpleader may be doubtful, because the title of the cause, as given in his transcript, is “Crescent Lumber & Furniture Company, a corporation, versus Otto Eaddatz, def’t.; Elizabeth Guth, interpleader.” Thereafter, an affidavit for appeal was made in a cause substantially entitled as above, except the interpleader was recited as “ Gustav Eaddatz, by Elizabeth Guth, agent, interpleader.” This affidavit recites that, on a day named, “came Elizabeth Guth, .agent of Gustav Eaddatz, who, being duly sworn, upon her oath says that the application for an appeal in the above-entitled cause is not made for vexation or delay, but because she believes the applicant (interpleader) is injured by the judgment of the justice.” The appeal
In this state of the case the circuit court dismissed the appeal, on the ground, as is stated in the written arguments of counsel,, that the interplea was made by Elizabeth Guth and that the appeal was taken by Gustav Raddatz. Whether this is a sound conclusion must depend upon the view which is to be taken of the very informal and incongruous proceedings above recited. The statute allowing interpleas in attachment suits reads as follows: “ Any person claiming property, money, effects, or credits attached, may interplead in the cause, verifying the same by affidavit, and issues may be made upon such interplea, and shall be tried as like issues between plaintiff and defendant, and without any unnecessary delay.” Rev. Stat., sect. 449. We are not juepared to say that, under this statute, the interplea would have to be verified by the affidavit of the claimant himself. We incline to think that it would be good if verified by some other person, competent as a witness, who claims to know the facts. This would seem to be a reasonable conclusion; since, otherwise, claimants residing at a distance, obliged to act by agents or attorneys, might not be able to file such an interplea in time to protect their rights. Nor are we prepared to say that, where there has been a succession of interest between-the original interpleader and some one else, it is not competent for a justice of the peace, in such a case, to-allow an amendment substituting the party who is the? successor in interest.
No doubt any person who could prosecute an action of replevin for property seized under an attachment, or an action in the nature of trover or trespass, can inter-plead for the property under section 449, Revised Statutes. In this state civil actions must be prosecuted in the name of the real party in interest, with certain statutory exceptions. Rev. Stat., sects. 3462, 3463. These exceptions do not extend so far as to allow a person to prosecute an action in his own name as the agent of some other person. No such thing is known to our remedial system, or to any other remedial system with which we are acquainted. A trustee of an express trust may, under section 3463, sue in Ins own name ; but then the legal title, and where possession is in controversy, the right of possession, if any, is in him, and not in the beneficiaries in the trust. We are, therefore, of opinion that the amendment which was allowed by the justice, by which it was attempted to substitute Gustav Raddatz as the interpleader, and to allow Elizabeth Gutb to carry on the controversy in the court for him, as his agent, was void. A person can prosecute or. defend in our courts either in person or by attorney, and in justices’ courts he can do it by an agent who is not an attorney. Rev. Stat., sects. 2905, 2908, 2911. But
We hold that the circuit court rightly dismissed the appeal, and the judgment is affirmed, with the concurrence of all the judges.