25 Mo. App. 402 | Mo. Ct. App. | 1887
This cause was heretofore before us and is found reported in 22 Mo. App. 403. On re-trial, plaintiff recovered judgment, and defendant brings the case here.
Defendant filed the following motion to dismiss the cause:
“Now comes the defendant, George W. Prior, who*405 states and makes known to the court that said plaintiff heretofore (to-wit: at the May term, 1885, of this court), had and recovered judgment against defendant herein for the sum of five hundred dollars; that the plaintiff •sold, assigned and' transferred said judgment to one W. 13. Pope; that said Pope, by virtue of said assignment, transfer and sale, became, and was, and now is, the absolute owner of said judgment; that said judgment was obtained upon the cause of action stated in the petition herein, and that said judgment was, by the Kansas City Court of Appeals, reversed; that said Peter Renfro is not the real party in interest herein ; that he has no interest or claim against the defendant, as in the petition stated; that said Pope is the party interested — all of which defendant is ready to verify and make proof, wherefore defendant moves that this suit be dismissed.”
. The facts and allegations in this motion were admitted to be true. The motion was overruled and defendant excepted. Defendant then filed the following motion to have Mr. Pope substituted as a party plaintiff :
“Now, at this day, comes the defendant, and says that one W. S. Pope is the legal and equitable owner of the claim (if any), which plaintiff has against the defendant, and set forth in plaintiff’s petition; that the plaintiff has no interest or claim whatever in the said •cause of action; that all interest and claim of plaintiff therein was, by plaintiff, for value, assigned and transferred to said W. S. Pope; that a judgment was obtained in said cause, in behalf of the plaintiff herein, at the May term, 1885, of this court. Which said judgment was, by plaintiff, sold, assigned and transferred to said W. S. Pope, wherefore he asks that said Pope be made a party plaintiff herein, he being the real party in interest.”
The facts and allegations in this motion were likewise admitted to be true. The court overruled the motion and defendant excepted. Plaintiff testified that the
“ The court instructs the jury that, under the law and evidence, the verdict should be for the defendant.”
The court refused the instruction, and the defendant excepted.
I am of the opinion that the judgment in this cause cannot stand.
It is admitted to be a fact, that the plaintiff has no interest in this suit; that he has assigned his interest therein to W. S. Pope. The recovery, therefore, must be had on the rights of Pope as they exist by virtue of the assignment, he being the real party in interest. But for section 3671, 'Revised Statutes, the suit would, under the provisions of the statute, have to be prosecuted in the name of the assignee. By that section the original plaintiff may remain plaintiff, if he be indemnified by the assignee against costs and damages ; or the assignee may be substituted as party plaintiff, the original plaintiff dropping out. This is, however, a matter between the assignor and assignee, and, if no move be made by them, it is no concern of the defendant, and, for this reason, the court properly overruléd defendant’s motion to substitute the assignee as a party plaintiff. The original plaintiff in this case, however, only remained, after the transfer of his interest, a nominal plaintiff. The recovery, if any, must be by virtue of the rights of Pope as assignee. This is evident, for Pope could have been substituted as the actual plaintiff.
This being an action of slander, it does not survive, and is not assignable. It falls under the maxim, aciio personalis moritur eum persona. Such actions are not assignable even in this state, which has adopted the liberal rule in regard to assignment for torts. “The test to be applied in determining the assignability of causes of action is, whether the cause of action would survive and pass to the personal representative of a decedent. If it
The suit proceeds as if the action had been originally instituted by the assignee, or he had been substituted in name, as a party. The suit is controlled by him, and the judgment is his, though in the name of another.
It follows that the judgment should be reversed.