Abrams v. . Cureton

FeaesoN, C. J. “Every action must be prosecuted in the-name of the real party in interest.” C. C. P., sec. 55. This provision is significant, and was necessary in order to- *526 let in all defenses, as well equitable as legal, against the real party in interest, and save a resort to another action, so as to work in harmony with the provision of the Constitution. Art. II, sec. 3. “ The distinction between actions at law and suits in equity and the powers of all such actions and suits shall be abolished,” &c. For instance, the holder of a note, without endorsement under the old system, sued in the name of the payee, and if the defendant had any defense, legal or equitable against the holder, who was the real party in interest, it could only be set up by a suit in equity. In our case, Davis is the real party in interest, and to allow an action to be prosecuted in the name of Abrams, who is merely an agent or attorney for collection,^ would make this section of C. C. P. of no effect. Not being able to stand the force of this battery, the counsel for the plaintiff yielded his first position and fell back upon sec. 5 7: “An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted,” and relied on Willey v. Gatling, 70 N. C. Rep. 410, to support his prosecution. In that case Willey received the note as “ a collateral ” to secure a debt due to him. So the effect was to constitute him a trustee for himself to the amount of his debt, with a resulting trust to tire grantor for the excess. In this case there is no consideration whatever for the assignment of the note ; it would seem the motive was to avoid the supposed bearing of certain proceedings of a court in the State of South Carolina. Whether a Court of Equity in a “ creditor’s bill” has power to enjoin creditors, who are not parties, from sueing an administrator, unless it be necessary for the protection of a fund which the court has taken into its keeping ? Whether such an injunction, supposing it to be valid, would have the effect of preventing a creditor from suing in- another State ? are ques *527 tions into which wo do not enter. "We refer to them merely as tending to show that the assignment being voluntary, that is, without consideration, and for the benefit of the assignor, cannot bo allowed any legal effect, save that of constituting' an agency to collect. Under C. O. P., as amended, see Battle’s Eev., sec. 68, Act of 1868-9, in transitory actions, the summons must be returnable either to the county in which the plaintiff or the defendant resides. If the party really interested in a note, can by a voluntary assignment for the purpose of collection, enable the assignee to sue in the county in which he resides, this provision of the statute amounts to nothing, and the summons may be returnable to any county which the party really interested, may choose to select. Thus it is clear, that to allow this action to bo maintained in the name of Abrams, will nullify sec. 57, C. C. P., as to the real party in interest, and also sec. 68, Act of 1968-69, which, instead of requiring the action to be brought in the county where the defendant resides (as under G. 0. P.,) al lows the plaintiff to bring it in the county in which he or the defendant resides. This the court is not at liberty to do. 'True, in this particular case the action is localized by see. 68, C. C. P., Bat. Eev., that is, fixed in the county where administration is granted, but the principle is general, and would extend to transitory actions, and enable plaintiffs to select any county without reference to the residence of either the plaintiff or the defendant. Judgment below reversed, and judgment that defendant go without day and recover his costs. Per Curiam. Judgment reversed.