Frierson v. Blakesley , 3 Stew. 267 ( 1830 )

By JUDGE WHITE.

Courts of law have long manifested great care in protecting the rights of equitable plaintiffs, who are compelled to sue in the names of others; and our statutes have made some salutary provisions, which this Court has inclined to favor, to prevent the dismissal of appeals from before justices, on mere technicalities, and defects of form. We have also, perhaps, as liberal statutes of amendments, as can be found in other codes, and yet there are certain fundamental rules, which cannot be lost sight of, without endangering the rights of parties, and destroying all system in the administration of justice. The forms of actions to a considerable extent, are founded in good sense, and preserved from necessity; and hence we find that amendments have, by almost all Courts, been so restricted, as not to allow of a change of the character of the action. Again, the suit must be brought by him who has the legal right, and his name cannot be substituted by another. And although Courts for certain purposes, do recognise a benefieial or equitable plaintiff, so far as to protect his rights, I know of no instance where they have stricken out the legal plaintiff, .and placed the one for whose use the suit is brought in his stead. The case of Smith & Hill v. Cobb,^a was one commenced before a justice of the peaee, against both the maker and indorser of a note; it was taken by appeal to Madison Circuit Court, where by leave of the Court, the plaintiff was permitted to dismiss his suit against the indorser, and take judgment against the maker alone. On error to this Court, judgment was reversed, on the principle that the statute, as to the trial of appeals fromjustices of the peace, does not cure a mis-joinder of parties; and if so, it cannot cure the more fatal mistake, of bringing the suit in the name of a dead man, as in this case. And again, if the defect of a misjoinder of parties could not be remedied by the Circuit Court, in the case cited, surely the Court here, must have erred in striking the name of one man from the record, and substituting that of another in h'is stead. In either case, had the suit been commenced properly, it could have been sustained; but both cases being alike materially wrong in their inception, they must abide the same result. As to the statute referred to,^b it was evidently designed for cases, commenced in the names of living persons, for the use of others, and therefore has no application to the present question. We then think that the first assignment of error is sustainable. The second assignment we think equally well taken; the appeal bonds being given to English, who was dead, are void; and hence the judgment upon them should not have been rendered.

Judgment reversed.

Judge Lipscomb, not sitting.

a 1 Stewart 62

b Laws of Ala. Page 70.