18 Ill. App. 281 | Ill. App. Ct. | 1886
It is a general rule that an action at law upon a contract must be brought in the name of the party in whom the legal interest in the contract is vested. Dix. for use, etc. v. Mercantile Ins. Co., 22 Ill. 272; Larned v. Carpenter, 65 Ill. 543. A.n action of debt for the penalty of a bond is strictly a legal action brought to enforce a legal right. The penalty is one entire thing and can only be claimed by the obligee in the bond or his legal representatives. Sanders v. Filley, 12 Pick. 544.
The question in this case is whether the action upon the bond was properly brought in the name of Stelle, the obligee, Klink, having died. Klink was the sole obligee and Stelle was not the administrator of his estate. The legal right of Stelle to maintain the action upon the bond is based solely upon the circumstances that Klink was the assignee in bankruptcy of the estate of Butters, and that after his decease Stelle was appointed in his place.
We are of opinion that the action was not properly brought and could not be maintained by and in the name of Stelle as the successor of Klink as aforesaid. First, because the judgment in justice’s court, in respect of which the appeal bond in question was given, was recovered by Klink after he became assignee, and secondly, because from what appears upon the face of the declaration, as well as by the evidence, neither the judgment nor the amount of it, had it been collected, belonged to the estate of the bankrupts and could not be regarded as assets. If, therefore, Klink had brought an action upon the bond in his lifetime the law would have required him to bring it in his own right, and not in his representative character as assignee. That being the case the only proper party to bring the action after Klink’s decease is the administrator of his personal estate. We regard these views as fully supported by the settled principles of analogous cases. Betts v. Mitchell, 10 Md. 316; Hosier v. Arundell, 3 Bos. & Pul. 7 ; Adams v. Campbell, 4 Vermt. 447; Kline v. Guthart, 2 Penrose & W. 490, opinion by Gibson, C. J.; White v. Joy, 13 N. Y. 83; Austin v. Munroe, 47 N. Y. 360. For the reason stated the judgment of the court below will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Judgment reversed.
