66 A. 514 | Conn. | 1907
This action was brought to recover a balance of moneys and funds of the estate of Theodore S. Lowndes, deceased, deposited in the defendant's bank by one Layton, who was the predecessor of the plaintiffs as administrator of the estate, and was also cashier of the defendant. The motions state that this balance was misappropriated by Layton, and the complaint shows an attempt on his part, with the knowledge and consent of the defendant, to appropriate it to the purpose of taking up worthless and dishonored checks, notes and other securities of various persons, which the defendant had paid and was then carrying as a part of its cash assets, and for which the estate was in no manner liable or obligated, and received no benefit. Layton was removed as administrator and the plaintiffs appointed in his place. They demanded said balance of the defendant, and it refused to pay the same or honor their checks drawn therefor. Layton had given an ample probate bond, with the AEtna Indemnity Company as surety, for his faithful discharge of the duties of administrator. The surety, upon demand by the plaintiffs, paid them the amount of said balance, $58,000, and took from them an assignment of all their rights and claims against the defendant. It thereupon instituted this suit in the name of the plaintiffs, and is prosecuting it at its own expense and for its sole benefit. Layton, as cashier, gave the defendant a bond of $10,000, with the AEtna Indemnity Company as surety, for his faithful performance of his duties as cashier. He was unfaithful in the performance of those duties, whereby the defendant lost upward of $10,000, and has a claim for that amount against the surety. After this action was brought the defendant requested the AEtna Indemnity Company to maintain the action in its own name, and it refused. It thus appears that the defendant has an independent claim against the AEtna Indemnity Company which is in no way connected with the cause of action set *696
up in the complaint, or with the transaction out of which it arose. All questions between the parties to the controversy in suit can be fully determined without consideration of the defendant's claim, and without prejudice to the defendant or any other party. Treating the action as one between the plaintiffs and the defendant, it is too clear for discussion that the Indemnity Company cannot properly be made a codefendant to enable the present defendant to litigate with it a claim in no way connected with the matter in suit. State v. Wright,
The defendant urges that by making the AEtna Indemnity Company a coplaintiff, or sole plaintiff, a multiplicity of actions may be avoided. While the law encourages, it does not compel, the settlement of all controversies between the same parties by a single action, A plaintiff, therefore, may bring suit upon a single one of several causes of action which he may have against the same party, and a defendant may or may not, as he sees fit, plead a set-off or counterclaim which he has against such plaintiff. Thus the defendant in the present case, if his motion were to be granted, could not be compelled to set off his alleged debt against the Indemnity Company's demand. It does not follow, therefore, that a multiplicity of suits would be avoided were the defendant's motion to be granted. But the Indemnity Company, as assignee of a chose in action, had an election to bring the suit in its own name or in that of the assignors. At common law it must have brought it in the name of the assignors, but now by § 631 of the General Statutes *697
it may bring it in its own name, by setting forth in the complaint that it is the bona fide owner of the claim and when and how it acquired it. The statute, however, does not supersede the bringing of actions in the name of the assignor. Saugatuck Bridge Co. v. Westport,
The record discloses that the AEtna Indemnity Company was summoned in as codefendant, that it appeared, answered to the complaint, demurred to the motion and moved for a more specific statement of the cause of action set up in a counterclaim which was filed by the defendant after the demurrer was filed. As no question of any irregularity in this procedure was raised, we deem it to have been waived.
There is no error.
In this opinion the other judges concurred.
