McLott ex rel. Marvin v. Savery

Baldwin, J.

The errors assigned which we think proper to consider, relate to the ruling of the court upon defendant’s demurrer.

■ It is first claimed that there was no copy of the deed from White & Smith to Marvin attached to and madé part of plaintiff’s petition. The plaintiff’s cause of action is based upon the written lease, a copy of which is attached to the plaintiffs petition. It is not the evidence in the case that the plaintiff is to attach to his petition, but a copy of the instrument or account upon which he sues. The plaintiff must give to defendant notice of his cause of action, and not the evidence he will offer to sustain it. The demurrer for this reason was not well taken.

It is claimed in the second place that there was a mis ] joinder of parties; that James C. Savery was not primarily liable with the lessee, Safford Savery; that in order to make him so liable, due diligence should have been first used against the said Safford Savery, before suit could be brought against James C. Savery. This position of appellants cannot be maintained. James C. Savery was notan indorser or assignor of the contract after made, but he became a party to the original contract, and agreed to pay the rents as stipulated, if not paid by the lessee. As soon as there was a failure to pay by Safford, James C. became jointly liable with him.

It is claimed in the third place that this suit is not brought in the name of the real parties in interest; that notwithstanding the lease had never been assigned by McLott, Cor-bin & White, yet that it was in possession of Marvin, assigned to him by White & Smith ; and that, as their assignee as well as vendee of the leased premises, he had a right to sue in his own name. Section 1676 of the Code of 1851 provides that suits must be brought in the name of the real parties in interest. This section however merely prescribes a rule of action and is in no wise to affect substantial rights. Had this action been brought against the lessee alone, for ■rent due, Marvin, as the vendor of the leased premises, could have sued in his own name. But this proceeding is based upon the written lease against the lessee and his surety-; ¡and the lessors, McLott, Corbin & White, never having transferred by written assignment the lease to Marvin, the .suit was properly brought in their name as the parties having . the legal right to sue. Marvin could not have brought suit upon itin his own name. See Farwell v. Tyler, 5 Iowa 540.

The next point made by appellants is that the court erred in admitting certain evidence upon the final hearing of the cause. The defendants upon the overruling of their demur,er refused to answer. When a party abides by his demurrer and fails to plead over, he is not in a position to object to the admissibility of witnesses called by the plaintiff to establish his claim. He is in default for the want of an answer, and as a party in default he may have a right to . appear and cross examine witnesses, but for no other purpose. Sec 7 Iowa, 478, and 4 Ib. 72.

Judgment affirmed.