Willard v. Lugenbuhl

Wyly, J. The plaintiff, styling himself agent, without disclosing the name of his principal, brings this suit against G. Lugenbuhl as surety on a release bond subscribed by him, and also sues to annul the sale of certain property made by said Lugenbuhl to F. Ecrot, charging that this sale was fraudulent and simulated, and was contracted for the 'purPose of enabling the said Lugenbuhl to put his property beyond the reach of the plaintiff, his creditor. The defendants excepted to the action because the plaintiff did no-t disclose in his petition for whom he was suing as agent; that “ being non persona juris he is neither entitled to an action in his name individually nor in the name of a principal unknown to the tribunal, and therefore not able to possess any active or passive rights.” The exception was overruled, and on final hearing the court gave judgment for the plaintiff. The defendants appeal. We think the court erred in dismissing the exception of the defendants and allowing the plaintiff to stand in judgment without disclosing the name of the party for whom he was suing. A party may sue as [19] principal or he may sue as a fiduciary; hut if he ajipears iu the latter capacity he must disclose the name of the real plaintiff in the action. The petition must mention the name, surname and place of residence of the plaintiff. C. P. 172. But it is urged that the defendant, Lugenbubl, ought not to complain of tbe manner of plaintiff’s appearance, because be signed tbe release bond as security in an attachment suit in which tbe plaintiff appeared, as be now appears, without mentioning tbe name of tbe party for whom bo is agent. This is no reason why tbe name of tbe owner of tbe claim sought to be enforced should be withheld. An irregularity in one action will not justify it in another. The defendants are sued on the bond signed by Lugenbubl as security and judgment is prayed against them in favor of tbe plaintiff as agent. They ought to be informed in tbe petition of tbe name of tbe party summoning them to trial. Let tbe judgment appealed from be annulled and let the suit be dismissed at tbe costs of the petitioner in both'courts. Mr. Justice Howell is recused in this case.