Sammis v. Wightman ex rel. Marcher

RaxeyJ 0. J.: The second of the grounds of demurrer, involving as it does, the question of parties, must be disposed of primarily. The bill shows that the judgment at law obtained in New York bjr Wightman against John S. Sammis, the intestate, was transferred to James and Lucetta Marcher before the action at law was brought on it in Florida. The assignment was without the reservation of any interest in the assignor; it is absolute and unconditional. Lynchburg Iron Co. vs. Taylor, 79 Va., 671, 674; Omohundro vs. Henson, 26 Gratt., 511. The action at law in Florida is also one in which James and Lucetta Marcher sued in the name of Wightman for their own use, they pursuing the only form of action that obtained at law in this State in favor of them as such assignees prior to the act of February 15, 1881, (Sec. 981 R. S.) which form of. action we hold, in the opinion on the writ of error to such law judgment (Sammis, Admr. vs. Wightman, for the use of, etc. ante), filed cotemporaneously with this, has not been taken away by the statute mentioned. Such being the — 52 — nature of that action, the judgment therein is conclusive evidence, in this cause, that the transfer to James and Lucetta Marcher was proved on the trial of that one. Such transfer was essential to the right of James and Lucetta Marcher to sue in the name of the assignor Wightman for their use. Kendig vs. Giles, 9 Fla., 278; Field vs. Wier, 28 Miss., 56. In cases where the assignees bring the action in the name of the assignor for their own use, they are regarded as the real plaintiffs. Of course the judgment rendered in this cause must be regarded, in view of the allegations of the transfer in this suit, as the property of James and Lucetta Marcher, and not as that of Wightman. Kendig vs. Giles, supra; Wheeler vs. Wheeler, 9 Cow., 34; Littlefield vs. Story, 3 Johns., 425. As stated in the opinion upon the writ of error, the common law practice of the assignee suing in the name of the assignor for their use resulted from the refusal of the courts of law to recognize the transfer of choses in action, ■ and the farthest they went towards aiding such assignees was to permit actions in the name of assignors for the use of the assignees. Equity, on the contrary, looking always at the substance of things, and regarding forms only so far as they are essential to a safe and orderly administration of justice, has always recognized such transfers and regarded the assignees as the owners or parties really interested in the subjects of such absolute transfers (Dixon vs. Buell, 21 Ill., 203); and in this country it is the firmly established rule that it will administer relief to such — 53 — assignees in their own name. The English courts, though it seems not in all cases (Brace vs. Harrington, 2 Atkyns, 235), and the American courts in some of the earlier cases, regarded the assignor as a necessary party, but in this country now the settled rule is that the assignor when the assignment is absolute and unconditional, is not a necessary party, and is at most only a proper and formal party. Betton vs. Williams, 4 Fla., 11; Robinson vs. Springfield Company, 21 Fla., 203. We fail, however, to find any authority which, in the case of a simple, absolute assignment, does not regard the assignee or true owner as a necessary party. The contrary is distinctly held by every authority where we find the question discussed. The cases of Betton vs. Williams, and Robinson vs. Springfield Company, supra, considered either alone, or in connection with Kendig vs. Giles, supra, and Hooker vs. Gallagher, 6 Florida, 351, lead directly to, if they do not constrain, the conclusion we reach in this cause as to the necessity of James and Lucetta Marcher being parties complainant. If assignors are not necessary parties (and they are certainly not if uniformity of judicial view is any evidence of law), surely the assignees or owners of the chose in action are necessary or indispensable parties. In Field v. Maghee, 5 Paige, 538, it was held that the real party in interest must be a complainant in the court of chancery, and the assignee of a chose in action is not authorized to file a bill for the recovery of the same in the name of the assignor who has parted with all his interest in the subject-matter of the suit; and in Rog — 54 — ers v. Traders Insurance Company, 6 Paige, 583, 596-7, the expression is: In this court the suit is properly brought in the name of the real party in interest, as the assignee is not permitted to file a bill in the name of a mere nominal party. In Gleason v. Gage, 7 Paige, 121, the decision was that where the plaintiff in a judgment, after causing an execution to be issued thereon, which is returned unsatisfied, assigns the judgment, the assignee may file a creditor’s bill upon such judgment without- taking out a new execution after the assignment; and in such bill it is not necessary for the complainant to state the consideration of the assignment. In the opinion it is said by the chancellor: In courts of common law the real party is sometimes permitted to prosecute his suit in the name of a third person who has no subsisting interest, therein; and he is frequently compelled to use the name of the original creditor where a chose in action has been assigned; but in this court the assignee of a right of action must prosecute the suit in his own name, and it is a good defense, in most cases, that the nominal complainant has no interest in the subject-matter of the litigation. See also Mills vs. Hoag, 7 Ibid, 18; Sedgwick vs. Cleveland, 7 Ibid, 287; Van Hook vs. Throckmorton, 8 Ibid, 32; Hathaway vs. Scott, 11 Ibid, 173; Lowry vs. Morrison, 11 Ibid, 327. The decision in Varney vs. Bartlett, 5 Wis., 276, is that where the assignee of a chose in action resorts to a court of equity to enforce his rights therein, the suit must be prosecuted in his own name, and not, as in — 55 — cases at law, in the name of the assignor for the assignee’s use. In Coale vs. Mildred, 3 H. & J., 278, there had been a decree setting aside certain conveyances as fraudulent, but the evidence showed a transfe r by the complainant, the judgment creditor, of th e judgment, and neither of the assignees were parties, and the Court of Appeals, after argument, reversed th e judgment, counsel for appellee admitting that proper parties had not been made. In Haskell vs. Hilton, 30 Maine, 419, judgment at law was obtained in the name of the assignor of the chose in action, and a bill in equity was filed in the name of the assignor to reach property which, as alleged, was held under a fraudulent trust; and the proof was that the assignee was the sole and real judgment creditor; it was held that the bill should have been brought in the name of the assignee, and that the defect could be taken advantage of by demurrer or at the hearing, and the bill was dismissed at the hearing. It is said in Bailey vs. Inglee, 2 Paige, 278, that persons are necessary parties when no decree can be made respecting the subject-matter of the litigation until they are before the courts either as complainants or defendants; or where the defendants already before the court have such an interest in having them made parties as to authorize those defendants to object to proceeding without such parties. Sammis has an interest in having before the court the real and sole owners of the judgment of which payment is sought. — 56 — They are the material and necessary parties, while Wightman is a formal and an unnecessary, yet not an improper party. This case is of course distinguishable from those where the subject of the assignment is an equitable, as distinguished from a legal interest. Fulham vs. McCarthy, 1 H. L. Cas., 703. No other ground of demurrer will or should be noticed. The order appealed from will be reversed with directions tó sustain the demurrer, and for such proceedings as are in accordance with equity practice.