Gay v. Orcutt

ROBINSON, J. — This action was begun in the Grundy Circuit Court on December 28, against the defendants as officers of the Citizens Bank of Jamesport, Missouri, to recover certain deposits alleged to have been received by defendants between July 12, 1892, and July 13, 1893, when, the bank — 405 — was known by defendants to be insolvent or in failing circumstances. On defendants’ application a change of venue was awarded to the circuit court of Chariton county. The petition is in thirty-six counts, each predicated on section 2160, Eevised Statutes 1889, which makes the officers of a bank individually responsible for deposits received with their assent, after they have knowledge that the bank is insolvent or in failing circumstances. In order to avoid a multiplicity of' suits, the depositors assigned their claims to the plaintiff, and this action was begun in his own name. The case was tried before a jury and resulted in a verdict and judgment for plaintiff, and defendants have appealed. The first of the series, of errors necessary to notice which have been assigned by the defendants for a reversal of the judgment relates to the action of the court below in allowing this action to be prosecuted in the name of John L. Gay and refusing to dismiss the spe on the stipulation between plaintiff, John L. Gay, and the defendants for that purpose. It is claimed by defendant that under our statute (sec. 540, E. S. 1899), requiring suits to be brought in the name of the real party in interest, the assignee of the cause of action is regarded as the real party in interest and he is allowed to dismiss ■ or otherwise control the conduct of the case to the exclusion of the assignors, where suit is brought on the assigned accounts. The contention on behalf of the depositors was that, where, as here, the assignee refuses to further prosecute the action, the court will upon indemnity as to cost and damages, permit the cause to proceed in the assignee’s name, and not allow the latter to dismiss or discontinue the action. It seems that this case was originally commenced in the Daviess Circuit Court, but afterwards dismissed, and the cost, amounting to some sixty odd dollars, taxed against the plaintiff Gay. Whereupon the present suit was instituted, and afterwards an — 406 — execution was issued against Gay for the costs, in the DaviessCircuit Court, and demand made upon' him therefor. Becoming apprehensive about the accumulation of the cost, he informed the counsel for defendants that he never authorized this action to be brought, and -entered into a stipulation with them to- dismiss the cause upon defendants paying the cost which had been adjudged against him in the Daviess Circuit Court, together with all cost which had or might accrue in the present suit up to the time of such dismissal'. In the meantime, however, having learned of the contemplated dismissal and before the same was consummated, but after the filing of the above stipulation, the depositors-filed a motion to have the ease proceed in Gay’s name for their use and benefit. This motion was sustained by the court upon the depositors giving bond in the sum of one thous- and dollars to indemnify him against cost and damages, and defendants saved their exceptions to this action of the court. The plaintiff thereupon filed a motion to- dismiss the suit on the grounds that he did not authorize the action to be-brought, the said suit having been instituted without consulting him or without his knowledge or consent, and that he had- no knowledge of the assignment of the said claims to him and never agreed with the assignors to bring this suit or authorized any other person to do so. The court overruled this motion and defendants excepted. At common law, in the case of assignment of causes of actions arising ex contractu, all suits upon such assigned causes of action, with the exception of negotiable instruments, must be brought in the name of the party vested with the legal interest in the contract, and not in the name of the assignee. Code of Civil Procedure, Revised Statutes 1899, section 540,. however, has made a change in the relation to- parties, to actions. Under the provisions of this section, the assignee of the cause of action arising ex contractu is the real party in interest, and as such may maintain the action in his own name, — 407 — regardless of any collateral agreement between, bimself and the assignor as to the proceeds. This is now the settled doctrine in this State. [Guerney v. Moore, 131 Mo. 650.] The plaintiff being the real party in interest undoubtedly had the exclusive right to control the action and might dismiss or discontinue the case without assignor’s sanction. The assignors being strangers to the action will not be allowed to interfere in the suit to prevent a dismissal of the case or otherwise control the conduct of the case. Equally, of course, the assignors had no standing in court to submit a motion to carry on the suit in Gay’s name after he had refused to prosecute the same. This doctrine is affirmed and settled by many authorities. The right of a stranger to a suit to interfere with its process or conduct came up for decision in Hoover v. Railroad, 115 Mo. 77. There it was held that none but parties to suits will be permitted to interfere with or control the conduct of the suit. The court in that case said, “The general rule that none but parties to a suit will be allowed to interpose in its control obtains in this State as well as in other jurisdictions.” A similar principle was applied in State ex rel. v. Clymer, 81 Mo. 122. To the same effect is Fiske v. Lamoreaux, 48 Mo. 523. Freeman in his work on Execution, section 15, in expressing his views on the question before us, says: “The general rule that none but parties to a suit will be allowed to interfere with its management,' is equally applicable to the writ of execution which may be issued at the termination of the action. None but the parties to the writ, who are liable to be injured by it, can complain of irregularities with which it may be affected. Hence, no stranger to the action cam obtain an order quashing the execution.” To permit assignors, after having transferred their entire interest in the claims, to control the conduct of the suit,, would not only be against the plain intent of our code, bufe — 408 — would involve a case in collateral issues irreconcilable, and tbe parties and the court in confusion inextricable. If parties wish to transfer or assign their claims or rights of action to another for convenience, economy or what not, they must understand that with the assignment goes their right to control or interfere with suits that may be brought thereon. If parties wish to control suits begun upon accounts in their favor, they must retain control of their accounts. As the court would have no right, in the first instance, to force one to whom an account had been assigned without reward or hope thereof from the assignor, to assume the responsibility of its collection by suit, it equally is wanting in .authority to force against one's will the continuance of the undertaking voluntarily assumed to collect by suit an assigned account or accounts, which for reasons of prudence the assignee might conclude to abandon, and for a still greater reason would the court be wanting in authority to force an assignee to continue a suit on an assigned account in his own name when the assignee, as in this ease, protests that he never caused the suit to be instituted in the first instance. The record in this case shows that the assignee never in fact gave his consent that this suit might be begun in his name, but only that he had been selected by the depositors of the defendant bank, as the one to whom the accounts should be assigned, and that he did consent that the suit which was originally instituted in his name in Daviess county might be brought, and in which suit he was afterwards compelled to take a nonsuit, and which resulted in the costs above mentioned being taxed against him. This, suit was begun apparently upon .the assumption on the part of the attorneys for the assignor, that as the plaintiff Gay had consented to begin one suit upon the assigned accounts (which suit he was compelled to abandon on account of unfavorable conditions arising in its'progress), he certainly would sanction another suit to be maintained upon 'the accounts in his name, in Grundy county, where the unfavorable — 409 — condition 'that lead to his taking the nonsuit in the first instance did not exist. We have carefully examined the authorities cited by the able counsel for respondents wherein the courts have, to avoid a failure of justice, permitted suits to be prosecuted or continued in the name of the real party in interest^ after the original party or parties thereto have lost all interest therein, but they do not apply to the conditions of this case where the real party in interest had asked that the case be dismissed. The judgment will therefore be reversed and the cause remanded to the circuit court with directions to dismiss the suit in pursuance with the stipulation entered into between the defendants and the plaintiff Gay. All concur.