Shively v. Beeson , 24 Kan. 352 ( 1880 )

The opinion of the court was delivered by

Brewer, J.:

This was an action brought by plaintiff in error, to whom a promissory note for $1,500, of April 6, 1870, and .due fifteen months after date, had been assigned by successive assignments from the payee, W. T. Shively, to this plaintiff. The petition recites that an action was commenced on this note on the 9th day of July, 1874, and that said action was pending until the 21st day of October, 1878, when the suit was dismissed without prejudice to another action. At the time the suit was dismissed, a prior assignee in the actfen was the owner of the note, as well'as the plaintiffs in the action, and remained the owner until October 13, 1879, on which day he assigned the same to the plaintiff in error. On October 15, 1879, plaintiff commenced this suit, and defendants were served October 17, 1879. Defendants filed a general demurrer to plaintiff’s petition, which upon hearing was sustained. From this ruling plaintiff brings error.

The question is, as to the effect of § 23 of the code, which reads:

“If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.”

Now the argument is, that this creates an exception, and that plaintiff must bring herself within its very terms, or take nothing by it. The section says, the plaintiff, or, in case of his death, his representatives. There is no allegation of death, and she does not claim to be the plaintiff in the former action. Having named the parties who may sue, all others are excluded. A privilege is granted, which is limited to certain specified parties. • No general prolongation of the right of action is intended, but simply a special reservation to the plaintiff personally, or, in case of his death, his representatives. The very fact that the latter are- mentioned, shows that the intention was to limit to the parties named. Williams v. Council, 4 Jones (N. C.) L. 206, is cited in support of these views, in which the court decides that “ the proviso that the plaintiff may commence a new action within a year after suffering a nonsuit, means that the plaintiff must be the same, and the cause of action the same, but the defendant may be different.” This argument is plausible and strong, and is exceedingly well put by counsel for defendants in error. Nevertheless, we are constrained to believe that it is not the correct exposition of the statute. Of course, the intent of the legislature controls, and every section must be read in the light of other statutes. By this section it is conceded that-a right of action is preserved to the plaintiff. He may sue within a year. It is a right vested in him, a right whose existence defendants do not question. This right of action, being founded on contract, may by general law be assigned and the action maintained in the name of the real party in interest. After suit he may assign, and the assignment by special statute works no abatement, but the suit may progress in his own name, or in the name of the assignee. (Code, §40.) As the prior plaintiff, if still the owner, could beyond question have sued within the year, and after suit assign to plaintiff, it would seem that no valid reason exists why, under the general law of assignment, he might not transfer his claim before suit, and permit the assignee to commence suit in his own name. The assignment, being specially operative by statute in certain cases, should be generally operative, unless expressly prohibited, or unless against public policy. It would seem trifling to say that a party may commence suit, then assign and permit the action to continue in the name of the assignee, but that he might not assign before suit. Such construction would be an insisting upon form to the neglect of substance. -Yet the former, the statute expressly authorizes. A prohibition of the latter should not be implied. Substance of right is vital, and form only secondary. Substance of right being with the plaintiff, mere implication should not make form controlling and destructive of substance. Full force may be given to said § 23, by making it operative simply to keep the right of action alive for one year after failure of prior suit. Were the cause of action to be assigned pending prior suit, it might legally continue in the same name till its termination. If it failed, otherwise than upon its merits, is the cause of action lost?. The former plaintiff could not sue, because- he has ceased to be the real party in interest, and, according to defendants' argument, the purchaser of the cause of action could not sue, because he was not the prior plaintiff. Suppose, not by voluntary assignment but by order of the court, the claim is transferred to a receiver: does a failure of the prior action defeat any future recovery? Certainly, if defendants’ argument is sound. We cannot think such the intent of the legislature. Rather it seems to us that the intent is to preserve the right of action for a year after failure of suit, leaving that right of action free to transfer, and the subsequent plaintiff to be determined by other sections as to the real party in interest and the right of transfer.

This is the only question in the case, and it appearing that the court erred in the construction of this statute, the judgment must be reversed, and the cáse remanded with instructions to overrule the demurrer.

All the Justices concurring.