No. 21366 | Miss. | Mar 15, 1920
delivered the opinion of the court.
This is an appeal from a decree dismissing a (petition praying that an executor be directed to distribute the decedent’s estate in accordance with the terms of his will.
Samuel J ones by his last will and testament devised all of his property to his four children, one of whom' is the appellant Mlollie Roach Ridgeway, and appointed the appellee, F. J. Jones, as his executor, who duly qualified and proceeded to the discharge of his duties as such. Mollie Roach Ridgeway, having failed to obtain what she considered to be her portion of her father’s estate, employed Messrs. Dabney & Dabney and Somierville & Somerville, attorneys at law, to obtain the same for her, and to institute whatever legal proceedings might be necessary therefor, executing to them as compensation for their services an assignment of a one-third interest in the
When this petition came on to be heard it was dismissed by the court below, and Dabney & Dabney and Somerville & Somerville for themselves prayed for and were granted an appeal to this court. These attorneys were not otherwise made parties to the record in the court below. The assignment to them of an interest in her portion of her father’s estate hy Mollie hereinbefore referred to was filed along'1 with the papers in the case. After-wards a bond for an appeal j;o this court was executed with Mbllie Roach Ridgeway, Dabney & Daibney and Somerville & Somerville as-, principals therein. Mollie Roach Ridgeway’s name being signed thereto by “ Somerville & Somerville, attorneys.”
The cause now comes on to be heard on two motions filed by the appellee. The first mlotion sets forth that Dabney & Dabney and Somerville & Simerville are without authority to prosecute this appeal on behalf of Mollie Roach Ridgeway, prays that they be directed to disclose their authority therefor, and in event of their failure so to do that the appeal of Mollie Roach Ridgeway be, dismissed. The second motion prays for the dismissal of the appeal as to Somlerville & Somerville and Dabney & Dabney for the following reasons:
“(1) The said Somerville & Somerville and Dabney & Dabney were not parties litigant in the court below, and are therefore without legal right to prosecute an appeal to this court from the decree rendered in the court below.
“ (2!) The firms of Somlerville & Somerville and Dabney & Dabney are each copartnerships who can sue only in
It appears from the evidence submitted on these motions that after the rendition of the decree appealed from Mollie Roach Ridgeway instructed her attorneys not to appeal therefrom, and that they now have no authority to represent her except such as results from the assignment by her to them of an interest in her portion of the estate. Under the provisions of chapter 134, Laws of 1916 (section 497, Hemingway’s Code), the assignee of any interest in a chose in action may begin, prosecute, and continue any suit or action thereon in the name of the assignor, in which right is necessarily embraced that of an appeal to this court. Consequently Dabney & Dabney and Somierville & Somerville, the assignees herein, have the right to prosecute this appeal in the name of Mollie Roach Ridgeway, the assignor, without any other authority from her so to do than the assignment itself. The motion to dismiss the appeal will therefore be overruled.
Dabney & Dabney and Somerville & Somerville cannot, of course, appeal in their own names for two reasons: First, they did not join in the petition in the court below as they might have done; and, second, the appeal, if otherwise allowable, should have been in their individual and not partnership names. Including their names in the appeal bond, however, was mere surplusage.
Overruled.