Tully v. Herrin

SiMRALL, J..: H. Tully, syndic of A. J. Tully '& Co., a commercial firm at New Orleans, Louisiana, who had become insolvent, instituted this suit by attachment against Herrin. . The first question raised in this court is whether the syndic can maintain a suit at law in his own name. The syndic fulfills,' under the civil law, very much the same functions of trustee'under our system, upon a. surrender of all his property and effects, by an insolvent for the benefit of creditors. The laws of Louisiana provide for the appointment of a syndic, in whom the property and effects rest, to be administered for the benefit of creditors. It is not questioned that the syndic may maintain actions, in respect to the property, effects and choses in action, as the insolvent might have done in the courts of Louisiana. But it is insisted, that if he sues in a court of Mississippi on a chose in action, the law in the state controls, as respects the remedy and the power of action. Each state will recognize a right which has been acquired under the laws of another state, but reserves to itself the •exclusive control over the remedy, when the right is claimed in its tribunal. The Jieres factiis or natus in France, may directly sue and recover, in the courts of that country. But if part of the effects are in England, the forms of juris — 637 — prudence there would require that he should clothe himself with a representative character:, in order by suit to reduce the property to his possessionhence he must take out letters of administration. Whilst this is so, his ultimate right as determined by the law of France, to the enjoyment and usufruct of the property, is fully recognized. 1st. The right to personal property, or choses inaction, aré such as the owner may create or confer, or may arise by operation of. law, in the country ■ where the proprietor confers it, or the law operates upon it. .But the right of action will be regulated by the law. of the tribunal in which the suit may be brought. In Louisiana there is no distribution .between the legal and' equitable title. Equities which form so large a part of our jurisprudence, have no place in the civil law distinctly and separately. The argument was advanced for the plaintiff in error, that although, at common law, - this chose in action was not assignable, and courts of law would not recognize the assignee as legal owner of the debt, yet, as by the laws of Louisiana-, Tiilly, the syndic, took all the title and interest of the insolvents,and the Rev. Code, 485, had greatly enlarged the area of assignments, the action .was well brought. Art. 42, p. 4’8'5, is “ the assignee of any chose in action may recover the same in his own name, if the assignment be in writing.” If A.' J' Tully & Oo.,' had made a written assignment of the open account, then the plaintiff would have been within the statute, and would have-had a title tó sue at law. The assignment meant by the statute, must be made by the owner of the' chose' in action, 'the;'party, to whom the express or implied promise . was made. .The assignment made'to H. Tully, was by the operation of the laws of Louisiana, and not by. the immediate act " of the parties. Comity has not been- pushed-to the extent, that the laws-of one state may prescribe a form of action ..to the courts of another, or to enable a person to maintain a particular suit, on a- state of facts, or character of title, when such suit could not be brought according to the rules of law which govern — 638 — the forum. It was on such grounds that O. J. Marshall, in Beane v. Drummond, 1 Brock., declared “ that a debt, which, by the laws of Virginia, is not assignable, cannot, by the laws of any other country be assigned so as to enable the assignee to sue in Virginia-.” In the same connection, he says, “ suits must be prosecuted by virtue of the law of the country where they are instituted, and not of that where the claimant resides.” This being true, the assignment as well as the nature of the debt sued for, must conform to that law. The assignee of an open account has no title, by our laws, to sue in his own name, except the debt has been assigned to him in writing by the creditor. Any other transfer, although good by the law of the domicile, or place where made, will not invest the assignee, with the right of suit in his own name, because the mode does not conform to our law. His beneficial interest in the chose in action will be respected and enforced. But touching the remedy, he must submit to the forms and principles prescribed to the forum. „ Because of these doctrines, the great weight of authority, is, that the assignee under a foreign bankrupt law, cannot sue in his own name in our courts. An asssignee under the bankrupt laws passed, from time to time, by congress, can sue, because the law, which is paramount and operative, coextensive with the United States, so authorized. The laws of foreign countries, and of the several states, have no extraterritorial force. The very point we are considering, arose in the case of Kirkland & Co. v. Lowe, Patterson & Co., 33 Miss., 436, and was decided against the right of the syndic to bring the action-. We do not agree with counsel for the plaintiff in error, that the attachment law makes any change in the forms of action, or in the character of right, with which the plaintiff must be clothed. The “ creditor,” under the Rev. Code, 372, art. 2, who has; a “ demand,” of the character described in the first article, may make the oath, give the bond, and sue out the writ. But the pleadings must be conducted according to the accustomed — 639 — usages. H. Tully, the syndic, as beneficial owner of the debt, was a “ creditor ” within the intent of the statute. Any equitable owner of a chose in action is as much entitled to the writ, as he who combines both interests. But in declaring upon the cause of action, he must put upon the record the party .in whom is the legal 'title. 2d. Ought the amendment to have been made ? The precise amendment sought to be introduced into the pleadings, ought to be so distinctly stated as that this court can judge of its propriety. If that be not done, the record must clearly indicate in what particular the pleading is proposed to be changed. The objection made to the proceedings was that the legal title to the chose in action was in A. J. Tully & Co. The reason assigned is in these words : “ Because the declaration and proceedings are at the' suit of H. Tully, syndic of A. J. Tully & Co., and predicated on an open account, not assigned,” etc., etc. The more appropriate mode of taking the exception would have been by demurrer to the declaration, for the reason that it did not show a legal title in the plaintiff, or by an objection to the account when offered in evidence, because not assigned “ in writing ” .to the plaintiff.. The office of a motion is to bring to the notice of the court some matter or subject in the progress of a cause, which cannot be raised by plea or demurrer. It ought not to be permitted to usurp the place of regular formal pleading, where they are appropriate. If the declaration does not contain a cause of action, or if it sets out a good “ title ” defectively, the appointed mode of submitting the question to the court is by a demurrer, and not by a motion to dismiss. In regard to pleas, it has been more than once declared by this court, that if they have any merits, though defective and insufficient, they cannot be displaced on motion, but must be contested by demurrer. But, passing the form in which the objection was taken, ought permission to have been given the plaintiff to amend? We think the record sufficiently points to what the amendment was proposed to be. Manifestly, it was to obviate and ease the defect in the pleading, so as to — 640 — place on the record tbe party in whom was the legal title to the chose in action. The legal ownership was in A. J. Tully & Co., inasmuch as they had. not assigned the open account to the plaintiff. Within the statute of amendments could this have been done? ■ The statute is exceedingly comprehensive, made in the interest of justice and truth, in derogation of forms, technicalities and. ceremonies which oftentimes rise up as obstacles in the way, not attempting the- enumeration of a long catalogue of specific amendments that, .may be made. The leg.islatur¿ uses this general language as if purposely to. include any omission that might have occurred, in an enumeration ;.. “ The court shall allow .all- amendments to be made in any pleading or .proceeding.-at-any'time.before verdict, so as . to bring the merits of the controversy between the parties fairly to trial.” Kev. Code, 508, art. 180. It was said at the argument, to have allowed A. J. Tully & Co. to have been" introduced into the pleading would have been to; change the .action, and make a new and different suit... The injunctimquof the statute is to reform the “pleadings and procedings, ” s.o-.as to bring the merits of the con-trovei’sy fairly .to trial.- What, was the "controversy between these, parties ? - It was-'wheth'er the .defendant owed the debt, apparently-due,, by ..open 'account.-to A. Ü,. Tally & Co., but .which 'debt bad passed, on their insolvency, .to H."Tully, their syndic. The'declaration-advised the defendant that such-was the demand. It-is not controverted that the syndic wás.the proper...person, indeed'. the'..only,‘,persón ..entitled to í;e.(jeive the money, that beneficially he: owed the debt, to collect and distribute, among the.creditors, of the insolvents. It-, would .not be aiiyistretch'-of .the words of the siatute, surely no infringement of its --spirit: and-'purpose, .to- have allowed the plaintiff to so athóixd'his" pleading- in a technical matter as to enable him to recover. the debt,\-ííhless the defendant could produce meritorious reasons why he should not.' Among the special amendments named in the statute are these: The court may allow all mistakes in the name of — 641 — a party, or the form of the action “ to be corrected.” We do not suppose the statute so broad as that any mistake, or error, or misconception in the form of the action, may be “corrected.” If ejectment be brought for land, it cannot be changed into debt, nor conditions be' abandoned, and assumpsit substituted. But if assumpsit should be brought on a sealed instrument, it would be legitimate to change the form of the action into debt or covenant. The cause of action is the same, and the amendment would be necessary in order to bring the controversy to trial-on the merits. In Weathersby v. Sinclair, 43 Miss., 189, assumpsit was brought by a mechanic, for work and labor, and materials used in the erection of a dwelling. We held that it was competent to so amend the pleadings as to prefer a claim for the mechanic’s lien. Denton v. Stephens et al., 32 Miss. Rep., 195, in 1855 (prior to the adoption of the code), was this: suit was instituted in the name of one Fox, nominal plaintiff, for the use of Woodward. The defendants pleaded in abatement that Fox had died before the commencement of the suit. Woodward confessed the plea, but was allowed to strike out the name of Fox and insert that of Denton, his administrator. Such an amendment was said to be purely formal. It in nowise could prejudice the defendant, by depriving him of any substantial defense. We think that all the irregularities and defects in the pleadings specified in art. 181, p. 508, ought to be amended on application for that purpose, as well as those not embraced in this article, but included in the terms and spirit of the general words of the preceding art. 180. The very point under discussion went into judgment in Montague v. King, 37 Miss., 441. The suit was begun by attachment. The plaintiff, under leave of the court, amended his declaration by inserting the name of Gaddis as nominal plaintiff, for his use. This was assigned for error. It was said by the court, that the change was authorized by art. 180 of Rev. Code, already cited; that the change in the form of the action was merely formal. King was as really the plain-tiffin the amended as in the original declaration, nor was the — 642 — defendant cut off from any defense under the amendment. 'Which he could have made as originally brought. The amendment of the declaration, by making A. J. Tully & Co. nominal plaintiff, would not necessitate a change of either the affidavit or bond. The affidavit states the indebtedness to be to IT. Tully, syndic of A. J. Tully & Co. The bond recites the fact in the same way, and that H. Tally, syndic Of this firm, has sued out the attachment. The debt was really due to Tully, syndic; he being the substantial litigant, it was his duty to indemnify the debtor by giving" the bond, and he alone was responsible for costs. Judgment reversed and cause remanded, with leave to the plaintiff to file an amended declaration, and venire facias awarded.