Skews v. Dunn

Twiss, J.: This action was commenced before a justice of the peace in Salt Lake county. .The complaint, among other things, alleges that the defendant made two promissory notes, each payable to Sarah Skews; that they had been indorsed to the plaintiff, William Skews; that neither of them had been paid, except the sum of twelve dollars and fifty cents upon each. The answer set up several defenses, a specification of which is not necessary here. Upon trial the justice rendered judgment for the plaintiff for the balance due on the notes. The defendant appealed to the district court, where he was entitled to a trial anew, on the same cause of action and pleadings as in the justice’s court, and was liable to be confronted with the same testimony that could have been introduced on the trial before the justice, and no other. In the district court the former plaintiff, William Skews, joined by his wife, Sarah Skews, moved the court, upon his affidavit, to allow Sarah Skews to be substituted as plaintiff, and that the cause be continued in her name. In the affidavit he says: “ The said notes -were indorsed to me without consideration ; that the said Sarah Skews was and is the owner of said notes, and is really the party beneficially interested in this action; that I have this day transferred the judgment in the court below to her, and now have no beneficial interest whatever in this action, and consent to the substitution and further prosecution of this action in the name of Sarah Skews as plaintiff, and ask that the same may be done.” The court, against the objection of the defendant, allowed the motion, and Sarah Skews was substituted as plaintiff, and the cause continued and prosecuted in her name. [191] Although William in his affidavit says he has transferred to Sarah the judgment, he also says that she “was and is the owner of said notes, and is really the party beneficially interested in this action.” It is clear from this statement that the judgment obtained by him in the justice’s court was not his property; that although in his name, it was the property of his wife; that at the commencement of the suit he had no interest in the cause of action, and acquired none at any time thereafter; therefore she, pending the suit, neither acquired nor succeeded to ’ any interest whatever of her husband; that the cause of action at the time of making the motion was her property, as it was at the commencement of the suit; that the action was not commenced and had not been prosecuted in the name of the real party in interest. See section 4 of the practice act. The court below erred in substituting her as plaintiff, because at the time of the commencement of the case in the justice’s court, as it appears by the affidavit of William Skews, on the motion to substitute, that William was not the real party in interest in the action: Dubbers v. Goux, 51 Cal. 153; Eaton et al. v. Alger, 57 Barb. 179; Killmere v. Calvin, 24 Id. 656. Assuming that the cause of action, whatever it may have been, at the time the motion was made, whether it was the judgment of the justice or the notes sued upon, was the property óf the original plaintiff of record, and was by him duly assigned to Sarah Skews, the court below could rightfully, upon the motion sustained by the affidavit, order her to be substituted in the place of her husband, the original plaintiff, and the action be continued in her name, only upon the condition that it be so done as not to wrong or prejudice the defendant in any right or remedy involved in the action. If such substitution would result in prejudice or injury to any right of the defendant in the case, then it was error, and ought not to have been allowed: Howard et al. v. Taylor, 11 How. Pr. 380; S. C., 5 Duer, 604. Section 1064 of the compiled laws provides that “ a husband shall not be a witness for or against his wife, nor a wife a witness for or against her husband.” The unconditional substitution of Sarah for William Skews [192] ■ — of the wife for the husband — -as plaintiff, permitted Sarah Skews, against the objection of the defendant, to testify as a witness in the case in her behalf. This would not have been permitted before the substitution; from the record it appears that her testimony was gTeatly to the prejudice of the defendant. The only reason apparent from the record for desiring the substitution was that the testimony of Sarah Skews might be available on the trial of the case. In Harris v. Bennett, 6 How. Pr. 220, the assignee of the cause of action moved to be made plaintiff; upon this motion the court said: “ The motion can be granted only on condition that it be stipulated that the present plaintiff can not be examined as a witness; on that stipulation it may be granted.” If a third party to whom the plaintiff has assigned his cause of action can be substituted as plaintiff only upon a stipulation that the original plaintiff (who could not be a witness while a party to the suit) can not be examined as a witness, it would seem, with equal force of reason, that a third party (who can not be a witness unless made a party to the suit) can be made plaintiff only upon the stipulation that he shall not be examined as a witness. The fact that Sarah Skews was the only party beneficially interested in the cause of action does not, as we have seen, remove the objection: Dubbers v. Goux and Eaton et al. v. Alger, supra. The case is reversed, and remanded to the district court. Hunter, C. J., and Emerson, J., concurred.