97 P. 800 | Kan. | 1908
The opinion of the court was delivered by
For present purposes these assertions of the defendant in error may be taken to be the established facts of this case, inasmuch as there was evidence to support them and the finding of the trial court was general: George Sheidley owned a note-given by a corporation, which as a matter of convenience he assigned to David E. Gurney for collection,. Gurney having no beneficial interest in it. Judgments, thereon were taken in the name of Gurney against the-corporation and some of its stockholders. Sheidley died testate, making his sister, Sarah M. Sheidley, his. legatee. Gurney thereupon assigned the judgments to her. Gurney then died and the judgments were revived in the name of his administrator, W. L. Wood, who col
Miss Fischer prosecutes error, joining the administrator as a coplaintiff in error. She relies largely upon Reynolds v Quaely, 18 Kan. 361, where it was said that when a plaintiff assigns his cause of action before judgment, and then dies, a revivor should be had, not in the name of his administrator, but of his assignee. But the question of what may be the proper practice in such a situation is not here involved. Although the administrator could not have been required to prosecute the action in which the interest of his decedent had ceased, and although it may have been error to permit him to do so, his services in that connection have now been performed; he has already obtained the judgments and realized upon them. The question now is, How shall he be deemed to hold the proceeds of the note — as a part of the estate of a man who had not the slightest real title to it or in trust for the successor in interest of its actual owner? The mere statement of the question furnishes the necessary answer. The trial court rightly preferred substance to shadow and directed the money to be paid to the only person having a meritorious claim to it.
The judgment is affirmed.
