Premo v. Lee

The opinion of the court was delivered by Ross, J. The decision of this case is controlled by Spear v. Braintree, 47 Vt. 729. It was there held that tire failure of a former suit, because prosecuted in the name of the wrong person as plaintiff, brought to recover the same claim sought to be recovered in a later suit by the proper person as plaintiff, was a failure “for matter of form,” within sec. 973, R. L.; and if the latter suit was commenced within one year after the determination of the former suit, for the purposes of saving the claim from the operation of the Statute of Limitations, it was to be treated as commenced at the date of the commencement of the former suit. The test there applied was, whether if a judgment had been rendered in the first case on its merits, it would have been a good bar to the second suit in the name of the new plaintiff. On this test, there is no doubt but if a judgment in the suit in the name of Bates, assignee in bankruptcy, had been recovered against the defendant for the claim now in suit, that judgment would have adjudicated and determined the right of the plaintiff to prosecute this suit. The former suit, though in the name of the assignee, was brought and prosecuted for the benefit of the [62] plaintiff, who was then as now the owner of the claim against tlie defendant. This holding in regard to the law is conclusive that the canse of action is not barred by tlie Statute of Limitations. The judgment of the Municipal Court is reversed and judgment rendered for the plaintiff, for the sum found due with interest and costs.