Frear v. Bryan

Hanna, J. This was an action by Frear and Arbuckle, on a note executed by Bryan and Bryan to one Timmons, and by him assigned to the plaintiffs. The answer was— 1. A set-off held against Timmons before notice of the assignment. 2. Payment to Timmons before notice, &c. [344] After several terms, they filed what they called a third paragraph, to the effect that, at the time the defendants delivered the goods and paid the note, as in the two former paragraphs set forth, said Timmons was the owner of the said note, and promised to deliver it to defendants, but failed so to do, and fraudulently assigned it to plaintiffs without their knowledge, and without consideration; but that the legal interest in said note, at the time of the delivery of said goods, vested in the defendants, and that said plaintiff had not, at any time, the legal title to said note. Prayer, that said Timmons be made a party. There was a denial to the first and second paragraphs of the answer. A demurrer to the third paragraph was overruled, and the ruling excepted to. Upon motion of defendants, the Court ordered Timmons to be made a party-plaintiff, and that he reply to said third paragraph. This he failed to do. The record does not show that he had notice of the order of the Court making him a party. No reply was filed by Frear and Arbuckle, to this third paragraph. There was a jury trial; verdict and judgment for defendants. * Upon the trial, the plaintiffs offered Timmons as a witness to prove, among other things, that he had assigned and delivered the note sued on to the plaintiffs, in part payment of a prior debt, and that he notified the defendants thereof, before he created the debt to defendants for goods, as set up iii the pleadings and mentioned in evidence, &c. Objection was made by the defendants, and he was not permitted to testify, &c. It is said by the appellants, that two errors were committed by the Court. 1. In ordering Timmons to be made a co-plaintiff. 2. In excluding his testimony. As to the third paragraph, the appellant assumes ihat it is a petition to the Court to make a new party, and not an answer. Without stopping to inquire whether the third paragraph was strictly an answer or not, it is manifest to [345] us that the demurrer should have been sustained to it, for the reason that it does not contain matter sufficient to make it either a good answer or a petition, if such could be presented, for the purpose prayed. Conklin v. Bowman, 11 Ind. R. 255. It could be considered, at most, but a repetition of an answer already in; and the failure to take issue upon it, therefore,.worked no injury, as an issue was already formed under which the same evidence could be given as might have been offered under a denial of that paragraph. As there was no sufficient reason shown for an order making Timmons a party to the record, he stood, as any other assignee of a promissory note, a competent witness, and the refusal to permit him to be introduced as such, was, therefore, error. Upon the trial, if the proof had under the proper issues, disclosed that the plaintiffs were not the real parties in interest, they would have failed to maintain their suit (Garrison v. Clark, 11 Ind. R. 369); and we do not think that, in this case, an order ought to have been made directing a party to be joined as co-plaintiff, who had not, as far as the pleadings disclosed, any unity of interest with those who were already plaintiffs. Whether a case might arise where such an order ought to be made as to one not having a unity of interest, we do not decide. 2 R. S. pp. 30, 31. And surely a new party should not be made merely for the purpose of settling matters between that new party and the defendant, in which the original plaintiffs had no interest. 11 Ind. R. 255.—2 R. S. p. 41, § 63. If the defendants had either paid the note or held a just offset against it, before notice of its assignment, he could, under the statute, as well avail himself of those defenses against the note in the hands of the assignee, as in the hands of the assignor. The only plausible reason we can see for offering to make the assignor a party, was to place him in a position that, possibly, he might not be a competent witness. H. W. Chase and J. A. Wilstach, for the appellants. W. C. Wilson and G. Gardner, for the appellees. per Cwriam. The judgment is reversed with costs. Cause remanded, &c.