Merritt v. Daniels , 10 Iowa 196 ( 1859 )

StocktoN, J.

This judgment must be reversed. The answer was a denial of the plaintiff’s property in the note, and of his right to sue thereon in his own name, or as “ commissioner, &e.” The demurrer admitted the facts pleaded, and taking them to be true, there was no right in the plaintiff to bring this suit. The issue tendered, by the answer was, tl^at the plaintiff was in no manner authorized to sue upon the note for Ward, Bryan & Co. He should have joined issue with the defendants upon their answer, and proved his authority to sue on the note in his own name as commissioner.

It is true the plaintiff avers in his petition that he is a commissioner appointed by the court to collect the notes and accounts placed in his hands by the assignees of Ward, Bryan & Co.; and that in pursuance of the order of the court, he brings suit, &c. But the very question of the right of the plaintiff to sue in such manner, or by such authority is what the defendants seek to put in issue by their answer. The demurrer was an admission of plaintiff’s want of authority thus to sue as averred in the answer, and should have been overruled.

Judgment reversed.