81 Neb. 484 | Neb. | 1908
This action was originally instituted by H. V. Temple, as receiver of the State Bank of Gothenburg, against Thomas L. Carroll and the Union Pacific Railroad Company to recover the amount of a check drawn upon the People’s State Bank of Gothenburg by Carroll in favor of an agent of the Union Pacific Railroad Company, which had been indorsed and transferred by the railroad company to the State Bank of Gothenburg. The People’s
The principal grounds for reversal relied upon by the appellants are: First, that plaintiff can not maintain the action as a substituted plaintiff; second, the statute of limitations; third, the insufficiency of the evidence to sustain the verdict; fourth, alleged error in the instructions.
With reference to the first question, the record shows that upon the 8th day of October, 1906, the State Bank of Gothenburg, upon application to the court, was given leave to be substituted as plaintiff in the action in the place of H. Y. Temple, receiver, and to file a petition in the cause. Defendants were each given leave to file a
The plea of the statute of limitations was based upon the theory and assumption that the filing by the substituted plaintiff of an amended and substituted petition was the commencement of a new action, and that, more than five years having elapsed prior to the filing of such petition, the action was barred. It is conceded that the original action was begun previous to the running of the statute. We think the rule is generally well settled that the substitution of one party plaintiff for another in a pending action is a continuation of the original rather than the commencement of a new action. It is the same cause of action, only another party has succeeded to the rights of one of the litigants, and in our practice such party may be substituted as the real party in interest in lieu of the one who commenced the action. Since the statute of limitations had not run at the commencement of the original action, it follows that it can be no defense in this action.
The evidence discloses that on the afternoon of the 27th day of May, 1901, the Union Pacific Railroad Company received the check in controversy in payment of a freight bill. Through its agent ■ the check was indorsed and transferred to the plaintiff after banking hours on
In this view of the case, it is unnecessary to consider any instructions that may have been given. Whether erroneous or not, they were not prejudicial. It follows that the judgment of the district court should be affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.