Karrick v. Wetmore , 22 App. D.C. 487 ( 1903 )

Mr. Justice Shepard

delivered the opinion of the Court:

We are constrained to hold that the leave to amend by'substituting the administrator in the stead of the nominal plaintiff, who had died before the institution of the suit, was beyond the power of the court.

The provision of the Code permits a wide latitude of amendment and, in view of its beneficent purpose, we are disposed to give it the most liberal interpretaion; but it is limited by its terms to an existing case — one that “shall be pending” at the time, D. 0. Code, § 399. Here there was no pending case; no foundation for amendment. A proceeding begun in the name of a deceased plaintiff is a nullity. Harter v. Twohig, 158 U. S. 448, 454, 39 L. ed. 1049, 1052, 15 Sup. Ct. Rep. 883; Clay v. Oxford, L. R. 2 Exch. 54; Humphreys v. Irvine, 6 Smedes & M. 205.

Conceding the soundness of this proposition in a case where the action is not only in the name, but also for the use, of a deceased plaintiff, the appellee contends that the rule is not applicable where the deceased was only a formal, nominal plaintiff whose name is being used for the benefit of the true owner of the cause of action, who must be regarded as the real plaintiff throughout.

We are not able to agree with this contention. It is quite true that in an action at law in the name of the assignor of a chose in action for the use of an assignee, the use or beneficial plaintiff is so far regarded as the real plaintiff that his rights may not be prejudiced by the act of the nominal plaintiff. Welch v. Mandeville, 1 Wheat. 233, 236, 4 L. ed. 79, 80. In that early case it was said by Mr. Justice Story: “Courts of law, following in this respect the rules of equity, now take notice of assignments of dioses in action, and exert themselves to afford them every support and protection not inconsistent with the established principles and modes of proceeding which govern tribunals acting according to the course of the common law.” So complete and adequate is this protection at law that courts of equity will no longer entertain jurisdiction of a suit by the assignee of a chose in action, unless that in some special circumstances showing the inadequacy of the remedy at law in the particular case. Hayward v. Andrews, 106 U. S. 672, 677, 27 L. ed. 271, 272, 1 Sup. Ct. Rep. 544.

In the extension of the remedy at law it has been very generally held that as an incident of the assignment the assignor confers upon the assignee the right to take action in his name or that of his personal representatives, which right may be exercised without tbeir consent, and even against tbeir protest. Grover v. Grover, 24 Pick. 261, 266, 35 Am. Dec. 319; Rockwood v. Brown, 1 Gray, 261, 262; Fay v. Guynon, 131 Mass. 31, 34; Sumner v. Sleeth, 87 Ill. 500, 503; 15 Enc. Pl. & Pr. 495, 496,

And it would seem that whether the assignment shall have been made or the beneficial ownership acquired before or after the reduction to judgment is a matter of no consequence in a subsequent suit upon the judgment for the use of such assignee or owner. Lewis v. Wilder, 4 La. Ann. 574. The judgment is but a change in the form of the evidence of the debt.

In this jurisdiction the action cun be maintained only in the name of the assignor (except as provided in § § 431-434 of the recent Code, none of which applies in the case at bar), because he is the legal owner or trustee. The assignment, or change of ownership, is only recognized at law for convenience, and to the limited extent that the trust on behalf of the use plaintiff will be protected as above stated. Glenn v. Marbury, 145 U. S. 499, 508, 36 L. ed. 790, 794, 12 Sup. Ct. Rep. 914; Irvine v. Lowry, 14 Pet. 293, 300, 10 L. ed. 462, 465. The nominal plaintiff, as said in the case last cited, “is the real plaintiff in a court of law, in which legal rights alone can be recognized.” Hence, it was held in that case that the jurisdiction of the court, dependent upon the adverse citizenship of the opposing parties, must be determined not by the citizenship of the assignee or beneficial owner, but by that of the nominal plaintiff suing for his use.

To avoid any misunderstanding, it is proper to say that the case at bar is not governed by the Code above referred to, because, first, it is not apparent that the assignment is of the nature provided for therein, and second, it does not take away the remedy under the existing practice. The assignee, electing to pursue the latter, must do so in accordance with the settled rules governing therein. The doctrine that, in the contemplation of a court of law, the nominal plaintiff is nevertheless the substantial plaintiff in respect of the institution and prosecution of the action seems strictly technical, and for that reason has been modified by statute in some States; yet it is the logical result of entertaining jurisdiction at law in such cases at all. Consequently it is maintained in the .few decisions directly in point, to wbicb our attention bas been called, in jurisdictions where there has been no remedial legislation. Clay v. Oxford, L. R. 2 Exch. 54; Jenks v. Edwards, 6 Ala. 143; Humphreys v. Irvine, 6 Smedes & M. 205, 207.

Other decisions, though they do not determine the precise question presented in the case at bar, rest upon the same principle. State use of Justices v. Dorsey, 3 Gill & J. 75, 93; Fridge v. State, 3 Gill & J. 103, 116, 20 Am. Dec. 463 ; Logan v. State, 39 Md. 177, 188; Dashiell v. Baltimore, 45 Md. 615, 620; Le Strange v. State, 58 Md. 26, 45; McCormick v. Fulton, 19 Ill. 570; Tedrick v. Wells, 152 Ill. 214, 217, 218, 38 N. E. 625. In the case last cited, judgment having gone against the plaintiff in an action for the use of another, the appeal bond was given in the name of the use plaintiff. The appeal was dismissed because the bond was not by the nominal plaintiff. The court, at the same time, refused to permit the proceedings to be amended by substituting the bond -of the nominal plaintiff, saying: “You can no more amend a thing that has no existence, not even potential, than you can amend a void thing.”

Two decisions relied upon by the appellee in which amendment, under like conditions, vas permitted, remain to be considered, Denton v. Stephens, 32 Miss. 194; Lewis v. Austin, 144 Mass. 383, 385, 11 N. E. 538. In the first of these the court, without reference to the earlier case (Humphreys v. Irvine, 6 Smedes & M. 205, 207) held that the amendment was permissible under the broad terms of a recent statute, which provided that the “court may at any time amend pleadings by striking out or adding the name of any party,” and that “suit may be instituted against a party by a fictitious name, and when his true name is ascertained it may be inserted.” In Lewis v. Austin the court held not only that the amendment was within the spirit if not the letter of the statute, but also that it was permissible on the ground that a suit instituted in the name of a deceased person was not a void proceeding.

This necessary foundation for the conclusion reached does not exist in the case at bar, for, as we have seen, such a proceeding is a nullity in this jurisdiction.

For the reasons given, the order appealed from will be reversed with costs, and the canse remanded for further proceedings not inconsistent with this opinion. Reversed.