Montgomery v. Koester

On the Exception. The opinion of the Court was delivered by Eenner, J. This is a personal action brought by Montgomery, in his own name and right,"against the defendant. The latter had filed answer and the cause was at issue. Thereafter a motion was filed, suggesting a transfer by Montgomery to. Mrs. G-ullifer, and an order was entered recognizing her as subrogee. The-case was taken up for trial on 25th May, testimony taken on that and various subsequent days, to which the cause was continued, until 15th June, when defendant filed an exception to the effect that “Mrs. G-ullifer, subrogated, is a married woman and hath averred and proved no facts which warrant the Court in rendering judgment in her favor, and she is absolutely without capacity to stand in judgment. Wherefore, he prays that this exception be sustained, and plaintiff’s suit be dismissed with costs.” ’ Manifestly, this exception does not go to the dismissal of the suit, ■which was properly brought and at issue before the subrogation took place. The exception simply attacks the subrogation and the rights [1093] of the-subrogee thereunder. In absence of any interest proved, or even asserted in the defendant, the validity and effect of the subrogation seem to be matters between plaintiff and his subrogee, and not concerning the defendant. The suit proceeded in the name of the original plaintiff; the judgment, by its terms, is ‘‘in favor of plaintiff, Robt. E. Montgomery, Mrs Catherine G-ullifer, subrogated;” satis-' faction of the judgment will securely discharge the defendant, and he has no other interest in the matter. The authorities quoted as to suits improperly brought in the name of the wife do not apply to such a case.