Choate Rental Co. v. Justice

Schenck, J. The evidence of the plaintiff established that the Life Insurance Company of Virginia was the owner of the demised premises from which it was sought to eject the defendant, while the actions were *55 instituted in tbe name of Cboate Eental Company, which was the rental agent of the Life Insurance Company of Virginia, and the affidavits prescribed by the statute were made by “Choate Eental Company by Jno. G. Turner,” and John G. Turner “worked for” and “collected rents for” the Choate Eenta'l Company. The following excerpt from his Honor’s charge is made the basis of an exceptive assignment of error: “And the court charges you, gentlemen of the jury, that if you believe the evidence and all of it and find the facts to be true as testified to by the witnesses, under all of the evidence, it would be your duty to answer the issue £Yes.’ You can answer the issue, gentlemen.” This assignment of error presents the question brought forward in the brief as to whether these actions in summary ejectment can be maintained in the name of the Choate Eental Company, rental agent, when the property is owned by the Life Insurance Company of Virginia. C. S., 2361, prescribes the manner of removal by his landlord of any tenant who remains in the demised premises after the expiration of his lease, as follows: “When the lessor or his assigns, or his or their agent or attorney, makes oath in writing, before any justice of the peace of the county in which the demised premises are situated, stating such facts as constitute one of the above cases described, and describing the premises and asking to be put in possession thereof, the justice shall issue a summons reciting the substance of the oath, and requiring the defendant to appear before him or some other justice of the county, at a certain place and time, ... to answer the complaint.” While the statute clearly provides that the agent or attorney of the lessor may make the oath in writing required in actions in summary ejectment, it does not, in our opinion, provide an exception to the requirement of C. S., 446, that “every action must be prosecuted in the name of the real party in interest.” In speaking of section 55 of the Code of Civil Procedure, which was substantially the same as C. S., 446, Ruffin, J., says: “Under The Code there is no middle ground; for whenever the action can be brought in the name of the real party in interest, it must be so done.” Rogers v. Gooch, 87 N. C., 442. A real party in interest is a party who is benefited or injured by the judgment in the case. An interest which warrants making a person a party is not an interest in the action involved merely, but some interest in the subject matter of the litigation. The real party in interest in this action is the Life Insurance Company of Virginia and not its rental agent, the Choate Eental Company, and it was, therefore, error to charge the jury that under all the evidence they should answer the issue in the affirmative. *56 The defendant is not entitled to have the actions dismissed on bis motion to dismiss upon the evidence for the reason that the motion was not renewed at the close of all the evidence, but lodged only at the close of the plaintiff’s evidence. The introduction of evidence by the defendant constituted a waiver of the motion in absence of a renewal thereof. C. S., 567. Bordeaux v. R. R., 150 N. C., 528; Wooley v. Bruton, 184 N. C., 438. For tbe error assigned, tbe defendant is entitled to a New trial.