146 Ky. 514 | Ky. Ct. App. | 1912
Opinion of the Court by
Dismissing.
H. C. Lampkin brought this suit against tbe Mobile & Ohio Railroad Company. He alleged in bis petition that on May 29, 1910, be delivered to tbe railroad company 107 bogs at Berkeley, Kentucky, which it agreed to transport to East St. Louis, Illinois; that it negligently bandied tbe car containing the bogs by reason of which some of them died and others were injured to bis damage in tbe sum of $200 for which be prayed judgment. Tbe railroad company filed an answer controverting tbe allegations of tbe petition. Lampkin then filed an amended petition in which be alleged that after tbe bogs were loaded and shipped from Berkeley, be sold bis interest in tbe bogs to Ed. Holt; that Holt was entitled to whatever judgment was rendered in tbe action and be asked that the judgment rendered in tbe action be for tbe use and benefit of Holt; that Holt be made a defendant to tbe action for tbe purpose of receiving whatever judgment was rendered in tbe action. Holt entered bis appearance and filed an answer in which be affirmed tbe allegations of tbe petition and amended petition and asked, that whatever judgment was rendered against the defendant be for bis use and benefit. In this state of tbe pleadings tbe case was submitted to a jury and at tbe conclusion of tbe evidence tbe court instructed tbe jury peremptorily to'find for tbe defendant. Tbe jury having returned a verdict for tbe defendant tbe action was dismissed. Lampkin entered a motion for a new trial which was overruled, and he has appealed. The parties to tbe appeal are H. C. Lampkin, appellant, and tbe Mobile & Ohio Railroad Company, appellee. Ed. Holt is not a party to tbe appeal and the railroad company has entered a motion to dismiss tbe appeal on tbe ground that Lampkin is not the real party in interest.
Section 18 of tbe Code of Practice is as follows:
“Every action must be prosecuted in tbe name of*516 the real party in interest, except as is provided in section 21. ’ ’
Section 21 is as follows:
“A personal representative, guardian, curator, committee of a person of unsound mind, trustee of an express trust, a person with whom or in whose name a contract is made for the benefit of another, a receiver appointed by a court, the assignee of a bankrupt, or a person expressly authorized by statute to do so, may bring an action without joining with him the person for whose benefit it is prosecuted.”
Lampkin is not the real party in interest; for the amended petition shows that he sold the hogs to Holt, and that any judgment that is recovered is to be for. the benefit of Holt. Section 21 has no application. Lamp-kin is not the trustee of an express trust or a person with whom or in whose name a contract is made for the benefit of another. Section 19 of the Code provides:
“In the case of an assignment of a thing in action, the action by the assignee is without prejudice to any discount, set-off or defense now állowed; and if the assignment be not authorized by statute the assignor must be a party, as plaintiff or defendant. ’ ’
Under this section it was proper that Lampkin should be a party as plaintiff or defendant, but Holt is a necessary party plaintiff, as he is the real party in interest. The meaning of section 19 when read with section 18 is that the action must be brought in the name of the as-signee the real party in interest but if the assignment is not authorized by statute the assignor must be a party as plaintiff or defendant. The Code of Practice governs all civil cases. By section 1, civil cases are actions or special proceedings. An appeal to this court is regulated by the provisisons of the Code of Practice, and must be prosecuted by the real party in interest. So far as we can know Holt, the real party in interest, may not desire this appeal prosecuted. Lampkin has no interest in the action except to recover a judgment for Holt, and as Holt is not appealing from the judgment refusing him any relief, the appeal must be dismissed.
Appeal dismissed.
