54 Iowa 50 | Iowa | 1880
I. The case was tried to the court without a jury, and the following, among other facts, were found:
“ 1. That before the maturity of the note sued on herein defendant J. B. Williams was owner and holder thereof.
“ 2. That before the maturity of said note the defendant J. B. Williams sold, transferred and delivered the same to one IT. P. Marsh.
“ 3. That after the maturity of said note said H. P. Marsh left said note with A. D. Wright, an attorney at Cresco, Iowa, for collection.
“ 4. That A. D. Wright neglected and refused to account*51 to H. P. Marsh therefor, but without consent of IT. P. Marsh wrongfully converted said note to his own use.
“ 5. That afterwards plaintiff recovered a judgment against A. D. Wright, and toot said note by garnishment on the execution from him, and sold the same on execution sale therein, to one Hall, who transferred the note to plaintiff.
“ 6. That H. P. Marsh never sold said note or consented to its transfer, and never authorized suit to be brought thereon.”
III. As the plaintiff acquired no property in the note, he cannot maintain an action thereon; it can only he prosecuted by the real party in interest. Code, See. 2543. The same rule applies to an action upon the guaranty.
As the interest and title of Marsh was not divested by the sale upon execution, he may maintain an action to recover upon the note and guaranty. Of course another action cannot be maintained by another party having no interest in the note and guaranty.
Our conclusion, being supported by the most familiar rules of the law, demands the support of neither argument nor authority. The judgment of the Circuit Court must be
Beversed.