Swails v. Coverdill

17 Ind. 337 | Ind. | 1861

Hanna, J.

Goverdill sued Swai'ls upon an open account, and joined Gavin as a defendant, averring that CorerdiUavA Gavin, as law partners, had been employed by Surti's to defend, and did defend, him upon a charge, &c.; that their services were reasonably worth five hundred dollars; that afterward the partnership was dissolved, and the interest of said Gavin in said claim was by him assigned to said Ooverdill.

A demurrer to the complaint was overruled. The question presented upon this ruling is, whether one partner can assign his interest in an open account due the firm, to his co-partner; and if yea, whether a complaint by the assignee alone, is good, without an averment that the partnership affairs were settled, &c.? We are inclined to the opinion that, under such circumstances, one partner might become the real party in interest, so as to maintain a suit in his own name upon a claim.

Gavin answered that he had no interest, &e. Swails answered, admitting the employment, but averring that by special contract until Gavin, the firm were to defend him for the sum of twenty-five dollars, which he had tendered, &c. Reply in denial. Trial, and judgment for the plaintiff.

Upon the trial, the plaintiff offered Gavin as a witness, who was, over the objection of the defendant, admitted to testify as to the employment, the service, and the value thereof, and to disprove the special contract pleaded.

Our statutes hearing upon the question are, that the real party in interest must sue (2 R. S., p. 27); that all persons having an interest in the subject of the action, and in obtaining the relief demanded, shall be joined as plaintiffs, except, &c., and that interest shall not disqualify; hut this section shall not render competent a party to an action, &c. (2 R. S., § 238, p. 80); that where a claim arising out of contract is assigned, but not in uniting, the assignor shall he made a defendant, to answer as to the assignment and his interest, &c. Id. 28. That any person may be made a defendant who has, or claims, an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a compíete determination, or settlement, of the questions involved. Id. § 18, p. 31. That a party to an action may be examined as a witness, at the instance of the adverse party, &c. Id. p. 96.

B. W. Wilson, for the appellant. Oscar B. Ilord, for the appellee.

Under these statutes it is manifest that upon the assignment of an account, the assignor is a necessary party, either as a plaintiff or defendant. IV e are of opinion that he should be made a party defendant, and not plaintiff, as contended by appellant.

Gavin being thus a necessary party, the next question is, whether he rvas a competent witness as to the points upon which he was permitted to testify. It has been held that a party so situated was not competent. Cox v. Davis, 16 Ind. 378. To what was said in that case we might add, that, the statute quoted, (2 R. S., § 295, p. 96,) appears to exclude „ the idea that a party to the record can be a witness, unless he is adverse to the party who may offer to introduce him. If he is a necessary party, as in this instance, (16 Ind. supra,) he can not be a witness if he should disclaim having any interest in the event of the suit; for, occupying that position does not show that adverse position which the statute contemplates. Indeed,' if true, it shows the absence of any interest, of any adversary position. As was said in Swift v. Ellsworth, 10 Ind. 295, merely naming a person as an opposing party does not necessarily, and of course, make him an adverse party during the progress of the case. The evidence of Gavin having been thus improperly received, the judgment must be reversed.

Per CJtoriam. — The judgment is reversed, with costs, Cause remanded, &c.