« SebelumnyaLanjutkan »
Warnock o. Richardson, 50–450; Al- | ington v. Fisher, 27-276.
I payable to the treasurer of an uninA party suing on an instrument not corporated association, hild, that he negotiable by delivery, must show by might sue thereon in his own name: what right he claims to sue. It is McDonald v. Gray, 11-508. not sntficient to aver simply that he A surviving partner of a firm is the is the owner: Montague r. Reineger, real party in interest as to claims ex11-503; and he must have the legal isting in favor of the partnership and title, or a beneficial interest. A surety, he should sie (18 surriving partner, prior to the payment of the note, has without joining the representatives of nu right of action thereon against the deceased partner: Brown v. Allen, his principal: Dennison v. Soper, 35–306. 33-183.
It would seem that the mortgagee While parties may not, by agree- of property mig at muintain an action ment, upon assignment of the legal on a policy of insurance issued to the title of a note, provide that suit mortgagor, notwithstanding a provissball be prosecuted thereon in the sion therein prohibiting its assignname of the assignor, yet a party may, ment: Mershon v. Nat'l. Ins. Co., pending an action on a note, assign / 34-37. to another his interest in the recovery, The claim of the wife for damages without rendering it necessary to for a tort against her should be prochange the name of the party plain- secuted in her own name, and not tiff: Allen r. Neuberry, 8-65; How-jointly with her husband. The secey r. Willtrout, 10–105; but where tions allowing her to sue alone in such there is a transfer of the ownership cases are not simply permissive but of the note during the pendency of the imperative: Musselman v. Gailigher, suit, the new owner may be substitu- 32-383. tel as plaintiff on his own motion : Where the plaintiff in an action to Ferry v. Page, 84445; Fannon v. recover real property conveys his title Robinson, 10–272.
during the pendency thereof, the acThe assignee of a chose in action tion may be continued in his name. may sue thereon in his own name: (See $ 2561): Jordan v. Ping,:32-64. Roberts r. Corbin, 26-315, 325.
An action cannot be prosecuted in The assignee, by parul assignment, a name which is not that of a parinerof a bond may sue thereon: Conyng- ship, corporation or person. “Steamham v. Smith, 16–471 ; and a bond boat Pembinaw and owners," held given partly for the benefit of a party not to be the name of a party within not named therein, may be sued by the meaning of this section: Steamsuch person in his own name: Hunt- boat, &c., v. Wilson, 11-479.
SEC. 2544. An executor or administrator, a guardian, a trustee Exception. of an express trust, a party with whom, or in whose name a con- R. 275.
C. '51, & 1076. tract is made for the benefit of another, or party expressly authorized by statute, may sue in his own name without joining with him the party for whose benefit the suit is prosecuted.
Where a contract is made with an out joining such agent or trustee, or agent or trustee, the real party in in- the latter may sue without joining terest may sue in his own name with-the foriner: Rice v. Savery, 22-470.
The trustee of an unincorporated ( payable into the county treasury for association may sue in his own name the benefit of the school fund, renders for the benefit of the association, as the county such a " trustee” therethe trustee of an express trust: for, that it may bring action for such Laughlin v. Greene, 14-92.
penalty: Shelby Co. v. Simmonds, Where a bond in a replevin suit 33-345. concerning property of an intestate In an action brought by a rarty to was made payable to the executor in recover an amount deposited by him his individual capacity, held, that he for himself and others as a wager, might sue thereon either in his repre- held that the contract being void, he seniative capacity or individually: could not recover as the " party with Oliver v. Townsend, 16-430. And so whom or in whose name a contract is in a case where no es were devised is made," but could only recover the by will and the devisee was mule ex- amount of the deposit belonging to ecutrix, held, that she might recover him individually: Toney v. Snyder, thereon in a suit brought as execu- 50–73. trix: Grimmell v. Warner, 21-11. The section applied: Moorehead v.
The penalty of a bail bond being Hyde, 38–382.
Sec. 2515. All persons having an interest in the subject of the Plaintiffs
action, and in obtaining the relief demanded, may be joined as joined. R. 2759, plaintiffs, except where it is otherwise provided in this code. 1, 2 1678.
Where there is unity of interest as paid, held, that plaintiffs could not to the object to be attained by a bill join, but must bring separate actions in equity, all parties seeking redress for their proportionate shares : Ind. may join in the same complaint: Sch. Dists. Of Graham Tp. v. Ind. Powell v. Spaulding, 3 Gr. 443. So Sch. Dist. No. 2, 50-322. a number of separate property own- ! Two plaintiffs cannot join in an acers equally interested in restraining tion for slanderous words spoken of the collection of an illegal tax may them jointly: liinhel v. Daren port, join in an action by injunction for 33–33.5.) ; nor for fraudulent representhat purpose: Brandirli' v. Harrison tations made to them: Bort i. Yuw. Co., 50-164.
46-323 ; nor can parties who are jointThe fact that two parties who join ly arrested and tried for larceny join in a contract to perform certain work, in an action for malicious prosecution: are each to receive certain distinct, Rhoads v. Booth, 14-575. specified sums of money therefor, does Misjoinder of parties is not a not make it necessary that they ground for demurrer, but should be should bring separate suits on such taken advantage of by motion to contract: Fauble v. Daris, 48–462. strike out the names of the parties
Sureties who have paid money for improperly joined: Dist. Tp. of their principal, may join in an action White 0 ik v. Dist. Tp. of Oskuloosa, against him therefor: Skiff v. Cross, 41-512; Ind. Sch. Dist. of Graham 21-459.
Tp. v. Ind. Sch. Dist. No. 2, 50–327. But in an action to compel reim-! Such defect is not waiver by failure bursement of money paid by plain- to set it up by way of demurrer or tiffs which defendants should have l auswer: Bort v. Yaw, 46–323.
Sec. 2546. In case of the assignment of a thing in action, the Assignment: action by whe assignee shall be without prejudice to any counter right of de Tendant saved. claim, defense, or cause of action whether matured or not, if R. & 2760. matured when plead, existing in favor of the defendant and
against the assignor before notice of the assignment; but this section shall not apply to negotiable instruments transferred in good faith and upon valuable consideration before due.
This section applies only to an as- | A judgment passes to an assignee signment of a non-negotiable thing charged with all the equities which in action. The transferee of a nego- could be asserted against it in the tiable note after maturity, takes it hands of the assignor: Burtis v. subject to equities arising out of the Cook, 16-194; Bullinger v. Tarbell, note itself, but not subject to an in- | 16-491. dependent set-off: Richards v. Daily, As hearing on this section, see notes 34-427.
'to $ 2084.
In proposing the change made in assignee the other party cannot bring this section from the corresponding in his claims as a deten-e. The subsection of the Rev., the commission- stitute provides a remedy, and wil ers say, “ Parties may have claims do much to prevent the transfer of against each other, but not connected any but negotiable paper before due. with or growing out of the same None other should be protected": transaction. One may assign and Code Com'rs' Rep., p. 84. become insolvent; in an action by an! Sec. 2547. Any person may be made a defendant who has, or Defendants.
R. & 2701. claims, an interest in the controversy adverse to the plaintiff ; or who is a necessary party to a complete determination or settlement of the question involved in the action, except as otherwise expressly provided by law.
To entitle a party to be made a de- ! fore his marriage, on property which tendant, his claim must be made in subsequently to such marriage became good faith with an apparent interest his homestead, the wife is a necessary in the controversy. A mortgagor party defendant, and her rights in who has conveyed mortgaged proper- the homestead cannot be otherwise ty wth covenants, miy, on his own cut off : Chase v. Abbott, 20-1,4. motion, be made a party to a suit to The trustee of a deed of trust of tereclose the mortgage: Gitt'ord v. real property, should be made a party Workmin, 15-34
in a foreclosure proceeding thereon: The administrator is a proper, if not Tucker v. Silier, 9-261. a necessary, party in a proceeding to In an action by equitable proceedforeclose a mortgage executed by his ings to correct a mistake in a chain of deredent: Darlington v. Effey, 13-a title, previous grantors may be 17.
made parties defendant: Wulkup v. And so in an action to foreclose a Zehring, 13-306. mortgage executed by defendant be-' Sec. 2548. Persons having an united interest must be joined United inter
est : joinder of on the same side either as plaintiffs or defendants, except as other- en wise expressly provided by law. But when some who should thus 1920be made plaintiffs refuse to join, they may be made defendants ; the reason thereof being set forth in the petition.
SEC. 2549. When the question is one of a common or general Common interinterest to many persons, or when the parties are very numerous for
est: one swing and it is impracticable to bring them all before the court, one or R. 133;
C. '51, & 1680. more may se or defend for the benefit of the whole.
Persons severally charged with a | the suit in such sense as to have a tax have no such common or general right to appeal: Ibid. interest in resisting its collection as One or more of the members of an will authorize one to sue for all: unincorporated society may be sued or Fleming r. Mershon, 36-413.
defend for all if they are so numerous Where one party sues for the benefit that it would be impracticable to of others, those for whose benefit the bring them all before the court : Kelac.ion is brought are not parties to ller v. Tracy, 11-530.
Sec. 2550. Where two or more persons are bound by contract, Joint and or by judgment, decree, or statute, whether jointly only, or jointly several: Wiga
tions: huw and severally, or severally only, and including the parties to nego- sued.
R. 2761. tiable paper, common orders, and checks, and sureties on the same, €:
C. 51, 81081, or separate instruments, or by any liability growing out of the 1682. same, the action thereon may, at the plaintiff's option, le brought against any or all of them. When any of those so bound are dead, the action may be brought against any or all of the survivors, with any or all of the representatives of the decedents, or against any or all such representatives. An action or judgment
against any one or more of several persons jointly bound, shall not be a bar to proceedings against the others.
The maker and assignor or guaran- | as defendants by reason of the provi tor of an instrument not negotiable, sion of this section, when they would may be made joint defendants in an not be otherwise jointly liable : La action thereon: Tucker v. Shiner, 24- France v. Krayer, 42–143, 146. 334; Huse v. Hamblin, 29-501; so the Where a district township was divimaker and assignors of a negotiable ded into independent school districts, instrument may be joined: Marvin v. held, that action could not be brought Adamson, 11-371; Mix v. Fairchild, on an indebtedness of the township 12-351; and so an endorser may be against one of such independent disjoined as defendant with the maker: tricts alone : Knoxville Nat. Bank v. Stout v. Noteman, 30-414.
Ind. Dist. of Washington, 40–612; An action on a promissory note but that a joint action might be against a surety, may be brought brought against all the indepenwhere there is judgment by confession dent districts composing what was against the principal: Citizens', etc., formerly the district township, and Bank r. Oleson, 47-492.
a judgment against all of thein The provisions of this section are might be rendered: Dist. T'p. of applicable to the members of a White Oak v. Dist. Tp. of Oskaloosii, partnership, and an action on an 52-73; Kennedy v. Ind. Dist. of obligation of a firm may be brought Derby Grange, 48-189. against one partner atone (and held Action may be brought against the that this was so irrespective of Rev. personal representatives of one of two $ 2785, which was similar to, but not or more joint obligors, although the identical with $ 2553 of this Code): other joint obligor or obligors are Ryerson v. Hendrie, 22-480.
still living: Sellon v. Brader, 13A judginent in favor of a sole plain- | 305. tiff against two defendants jointly, In an action on a joint policy of inmay be set off against a judgment surance made by four companies, in against such plaintiff in favor of one which each bound itself in case of a of the defendants: Ballinger v. Tar- loss to pay one-fourth of the amount Well, 16-491.
of insurance, hell, that the cause of Parties who, under $ 1557, are each action against each was separate, and liable to action for separate injuries they could not properly be joined as committed thereunder, are not 80 defendants in one action: Viele v. bound “by statute" as to be joined | Germania Ins. Co., 26-9, 45.
Sec. 2551. The court may determine any controversy between Other parties parties before it, when it can be done without prejudice to the brought in. R. 2 2765.
rights of others, or by saving their rights. But when a determiC. 51, 2 1683. nation of the controversy between the parties before the court
cannot be made without the presence of other parties, the court must order them to be brought in.
This section is especially applicable / scription of the premises, running to cases where the debtor is under an through prior deeds, held, that the apparent liability to two different l original grantor conveying with such parties for the same debt, and only mistaken description, or if dead, his one of them is before the court : heirs, were necessary parties, and Fowler v. Doyle, 16-534.
should have been brought in: FlanIn a proceeding to correct a misde- ders v. McClanahan, 24-486.
SEC. 2552. When a bond or other instrument given to the Bond payable state or county, or other municipal corporation, or to any officer to state, county, or municipal” or person, is intended for the security of the public generally, or corporation.
of particular individuals, suit may be brought thereon in the R. 2787. C. '51, & 1693. name of any person intended to be thus secured who has sustained
an injury in consequence of a breach thereof.
A person intended to be secured, I curity of a county was improperly though his name be not mentioned given to the county judge, held, that in the bond, may bring suit thereon: the county might sue thereon: Huntington v. Fisher, 27-276.
Collins v. Ripley, 8–129.
attached proper'y under $ 2994, to the pard v. Collins, 12-570; Garretson v.
sheriff, an assignment by him is not A bond, though not such as is re- necessary to enable a party intended quired in a particular case by statute, to be secured thereby to bring suit may still be good as a common law thereon: Sheppard v. Collins, 12-570. bond, and the party for whose benefit For somewhat similar provision, it was given may sue thereon: Shep- see § 3368. SEC. 2553. Suits may be brought by or against a partnership Partnership.
R. 2 2785. as such, or against all or either of the individual members thereof, &: $1,8 and a judgment against the firm, as such, may be enforced against 1691. the partnership property or that of such members as have appeared or been served with notice. But a new action may be brought against the other members on the original cause of action.
The following cases were decideil | 21-494. under Rer. $ 2785, not identical with Service on one member of a cothis section.]
partnership, after dissolution, held Where judgment on a partnership sutticient to warrant judgment against debt is recovered against individual the firm, to be satisfied out of the members of a firm, a sale of individ-partnership property: Hale v. Vanual property thereunder will not be | Saun, 18-19. invalid although an individual credi- A judgment against a firm does not tor might, by proceedings in equity in become a lien on real property held in a proper case,compel a resort to part- the name of one partner, until made nership property: Hamsmith v. Espy, so by proper proceedings, although 13-139.
the firm may be the equitable owners: Whether a judgment against the Studler 1. Allen, 44-198. firm aloue, as such, is a lien upon any- The surviving partner should sue as thing but firm property, quære, but such for claims in favor of the partthe individual property of the mem- nership without joining the reprebers may be made liable by proper sentative of the deceased partner: action: Markham v. Buckingham, | Broun v. Allen, 3.3-306. SEC. 2554. Foreign corporations may bring suit in the courts Foreign cor.
porations. of this state in their corporate name.
R. 22789. SEC. 2555. An unmarried female may prosecute as plaintiff C. '31, & 169.), an action for her own seduction, and recover such damages as woma
Unmarried may be found in her favor.
C. 51, à 16G. This section does not take away , criminal prosecution for seduction, $ from the father the right to sue für 3867). Without that, she may recover damages for the seduction of his for loss of health, etc., but not for loss minor daughter. The action may be of character: Smith v. Milburn, 17 brought after she becomes of age, and -30. in a suit by the father eximplary! It is contemplated that the person damages may be given. He may seduced shall be unmarried at the maintain the action although the time of the seduction: Gover 1. Dill, daughter be not living with him or in 3–337. bis service, and though there be no Such action survives under $ 2525 loss of service. Decided under Code to the personal representatives of the of '51): Sterenson v. Belknap, 6–97. female: Shafer v. Grimes, 23-550.
To enable an unmarried female to! Section applied: Gruy v. Bean, recover for her own seduction, it is 27–221. not necessary that she be of previously For other cases as to seduction, see chaste character (as is required in a l notes to $ 3867.
Sec. 2556. A father, or in case of his death or imprisonment when pa cents or desertion of his family, the mother may prosecute as plaintiff Rian
may sue. an action for the expenses and actual loss of service resulting C. '51, ở 1697. from the injury or death of a minor child.
The damages to be thus recovered the minor's attaining majority. For are those accruing before the date of damages accruing subsequently, the