Ferry v. Page

Woodward, J. There is but one, and that a simple question presented, and that is, whether the court was justified in substituting E. P. Ferry as plaintiff in the action. The suit was originally brought by the indorsees of the note. Pending the action, and before plea pleaded, they assigned their property, and with it the note on which the suit is brought, for their creditors. According to the case of Allen v. Newberry, ante. 65, the action might have been permitted to continue and progress, in the name of the original plaintiffs, they being owners of the note at the commencement of the action. But, if the property in the note is transferred during the pendenc}7 of the action, there is no legal objection to the substitution of a new plaintiff. The rights of the defendant, of course, remain unaffected, and his defense unabridged. ITow it come to pass, that Ferry, Clark, <fc Williams, were made plaintiffs, erroneously, does not appear, nor is it material. However it may be in some cases, in one like the present, the change of the plaintiff, does not change, nor in any wise affect, the cause of action. The change is formal. The former owner, (the indorsee), failing while he held the note, and assigning his property, the cause of action remains the same, .in reality, whilst the question in [458] whose name the action shall be brought is, in substance, a formal one. Other' cases may, perhaps, be conceived, in which this question may become more important. In the present cause, Ferry, Clark & Williams having been made plaintiffs, as being assignees, if it was found, from whatever cause, that this was wrong, we see no reason why Ferry alone should not be substituted. This being done, the defendants were at liberty to deny that he was the owner of the note; for, although the action might have been prosecuted in the name of the original plaintiff, yet, having undertaken to substitute another plaintiff, they were bound to show one who held the proper legal position. ‘ There is no weight in the objection, that Ferry must show his light or title through, or l?y, dr under, Ferry, Clark & Williams. Whichever of them is.made plaintiff, he derives his right from the original , plaintiffs, as assignee under them, and if the defendant denies the right, he may put it in issue. It was not necessary thát Ferry should derive from, or through, Ferry, Clark & Williams. Ilis claim of right might be in opposition to theirs, but, in this case, they assent to his right. He is then made plaintiff, subject to any defense of the defendant. The objection that a new plaintiff" is made, has but little weight, at least, in a case of this nature, for the defense is in nowise changed. The second cause of demurrer to the petition of Ferry to be made plaintiff, is, that it shows no facts which antliorize him to become the successor of Ferry, Clark & Williams in the suit. The answer to this is, that he does not seek to come in as their successor, but instead of them, and as the assignee of the original plaintiffs. The court being satisfied that there was an error in substituting Feiry, Clark & Williams, corrected this by making Ferry alone the plaintiff. This, however, did riot cut off the .defendant’s right to deny his title to the note, and therefore his right to stand as plaintiff. The remaining error assigned is, that judgment was rendered for too great a sum. The petition claimed $1,104 00, [459] to be due, and prayed judgment for that amount, with interest and costs. Allowing a slight difference for different modes of computation, or other cause, the sum first named appears to have been the amount due when the suit -was brought, to which the plaintiff was entitled; and according to the decision of this court, he might recover interest from the commencement of the action under his petition. Butcher v. Brand, 6 Iowa, 235. As no error is found in the rendition of the judgment below, the same is affirmed.