Walker v. Hall , 66 Miss. 390 ( 1889 )

Arnold, C. J.,

delivered the opinion of the court.

The suit was brought by Hall as indorsee against Walker, the maker. The note or due-bill sued on was payable to W. P. and W. H. West. For value, it was indorsed by W. P. West, to Hall. W. H. West did not indorse, but she was present when the indorsement was made by W. P. West, and it was supposed that it was not necessary for her to sign as indorser.

The legal title to the instrument, after the indorsement of W. P. West, was in Hall and W- H. West. It is not disputed that Hall was the owner of the instrument, for value, at the time the suit was commenced. So that Hall had a right of action at the time the suit was brought, and the case is distinguishable from those which hold that a suit cannot be maintained when the cause of action does not exist at the time it is brought, but arises afterward.

Hall might have sued in his own name and in the name of W. H. West for his use. Instead of pursuing this course, he sued in his own name, and in doing so, there was simply the non-joinder of a proper and necessary party. Section 1511 of the code provides, that no objection for non-joinder shall be made at the trial, except in the manner therein specified, and that upon such objection being so made, the court or judge shall allow the declaration or writ to be amended by joining the party omitted, etc. Not having objected to the non-joinder, in the manner required by the code, appellant cannot complain on that account. Without such objection being made, the trial should have proceeded in the name of Hall, just as if there had been no non-joinder. Stauffer v. Garrison, 61 Miss. 67.

As the trial, under the circumstances, may have proceeded notwithstanding the non-joinder, and as the court might have allowed Hall to amend by adding the name of W. H. West as one of the plaintiffs for his use, Walker was not harmed by W. H. West being allowed to indorse the paper at the trial.

The errors assigned in regard to the account against W. P. West, filed by Walker as a set-off, need not be considered further than to say, that if error was committed with reference to it, it was error without injury. If the action had been brought by the payees W. P. and W. H. West against Walker, the indebtedness of one of them to him, could not have been pleaded as a set-off by Walker, against the joint demand, because there would have, been want of mutuality. Bullard v. Dorsey, 7 S. & M. 9 ; Moody v. Willis, 41 Miss. 347.

And as Walker could not have used a claim in his favor against one of the payees, as a set-off, if the suit had been brought by them, he could not use such claim for such purpose against their assignee.

Affirmed.