26 A.2d 676 (N.H. 1942), 3331, Montello Shoe Co., Inc. v. Suncook Industries, Inc

Docket Nº:3331
Citation:26 A.2d 676, 92 N.H. 161
Opinion Judge:Per Curiam.
Party Name:Montello Shoe Co., Inc. v. Suncook Industries, Inc
Attorney:Thorp & Branch, by brief, for the plaintiff. McLane, Davis & Carleton, by brief, for the defendant.
Judge Panel:Branch, J., did not sit.
Case Date:June 02, 1942
Court:Supreme Court of New Hampshire

Page 676

26 A.2d 676 (N.H. 1942)

92 N.H. 161

Montello Shoe Co., Inc.

v.

Suncook Industries, Inc

No. 3331

Supreme Court of New Hampshire

June 2, 1942

Case discharged.

Thorp & Branch, by brief, for the plaintiff.

McLane, Davis & Carleton, by brief, for the defendant.

Branch, J., did not sit.

OPINION

Per Curiam.

No sufficient reason for granting the defendant's motion appears. While the plaintiff has no interest to maintain the action and while its insurers are the real and active claimants against the defendant, the rights of the insurers are only to enforce the [92 N.H. 162] rights of the plaintiff, in whose name the action must stand and be maintained. The right of the insurers to be joined as plaintiffs in interest is not a right of the defendant that they shall be. They are parties

Page 677

privy to the action without actual appearance therein.

The insurers being non-residents, the defendant has the right that security for costs be furnished (P. L., c. 341, s. 3; P. L., c. 330, s. 8; Hening's Dig., 361, and cases cited), but the security may be ordered without their appearance as necessary parties.

The plaintiff's motion should also be dismissed. It has no rights against the defendant's insurer unless by trustee-process, and the insurer is in no respect a party in interest, even if it has the right or has agreed to defend the action.

The facts...

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