Scraf v. Johnson

Opinion by

Will-son, J.

§ 399. Parties plaintiff; assignee of a claim may sue without joining assignor; case stated. Appellee was assignee of O. J. Huskey, an insolvent debtor, for the benefit of the creditors of said insolvent. One M. Huskey was a creditor of said insolvent, and accepted said assignment. Said M. Huskey assigned his claim to appellants, and they brought this suit to compel appellee, as assignee aforesaid, to pay the pro rata due thereon, alleging their ownership of said claim, etc. Appellee excepted to their petition upon the ground that it showed upon its face that M. Huskey was a necessary party plaintiff to the suit, and said exception was sustained and the suit was dismissed. PLeld error, it is expressly alleged in the petition that M. Huskey had assigned to the plaintiffs the claim sued upon, and that plaintiff $ were the owners thereof. M. Huskey, therefore, had no right to or interest in the claim, and was not a necessary party in a suit upon or concerning it.. Appellants had the right to maintain the suit without joining their assignor. [Sayles’ Civ. Stat. arts. 266, 267.] It was the right of appellee, if he deemed it necessary to his own protection, and if he moved promptly, so as to not unreasonably delay the trial of the cause, to have said M. Huskey cited to appear and answer in the cause. [Sayles’ Civ. Stat. art. 1209.] Or said M. Huskey might, at a proper time and upon a proper showing, make himself a party by intervention. But it was not incumbent upon appellants to join him in the suit.

November 21, 1888.

Reversed and remanded.