Caligiuri v. Des Moines Ry. Co., 44952.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: SAGER
• Citation: 288 N.W. 702,227 Iowa 466
• Parties: CALIGIURI v. DES MOINES RY. CO.
• Docket Number: No. 44952.,44952.
• Decision Date: 21 November 1939

227 Iowa 466
288 N.W. 702

CALIGIURI
v.
DES MOINES RY. CO.

No. 44952.

Supreme Court of Iowa.

Nov. 21, 1939.

Appeal from Municipal Court of Des Moines; Don G. Allen, Judge.

An action at law for damages alleged to have been sustained by plaintiff as a result of a collision between his automobile and one of the defendant's street cars. The case as it comes before us turns on a question of pleading.

Affirmed.

Corwin R. Bennett, J. W. Albert, and Dale S. Missildine, all of Des Moines, for appellant.

Stipp, Perry, Bannister & Starzinger, of Des Moines, for appellee.

SAGER, Justice.

At the time of the accident out of which this case arose, the automobile was owned jointly by plaintiff and his brother, but the latter by written assignment transferred his rights therein to appellee. The allegations of the petition are of the nature generally found in actions of this kind, and in what follows it will be made to appear that it is unnecessary to set them out.

Defendant filed an answer in two counts: one, a general denial; the other, a plea that plaintiff was not the real party in interest. Attached to this answer were interrogatories, the answers to which disclosed that plaintiff had a “fifty dollar accident policy in the Allstate Insurance Company” (hereafter referred to as insurer), and that that company had paid $167.90 of the amount for which plaintiff sues, to wit, $231.90.

On April 8, 1939, defendant filed an amendment to its answer alleging that the insurer had made a partial payment; was thereby subrogated pro tanto; and that the Iowa Des Moines National Bank and Trust Company (to be referred to hereafter as the bank) held a mortgage on the damaged automobile to the extent of $537.75. The prayer of this amendment was that defendant go hence with its costs.

On the same day, defendant moved the court to order the insurer and the bank to be brought in as parties because of the matters set forth in the amendment. This motion was overruled and from this ruling defendant appeals.

It will be seen that we have before us the question as to who is the “real party in interest” in the situation disclosed. The parties cite many authorities from other jurisdictions, but a discussion of them here would be profitless. They will be found gathered together and analyzed in an exhaustive note to Harrington v. Central States, etc., Co., 96 A.L.R. 859, at page 864. While our own decisions have not met the precise question here presented, our views will be found to have been indicated with such directness as to point the answer. Section 10967 of the code, 1935, provides: “Every action must be prosecuted in the name of the real party in interest.”

Section 10973 requires that “persons having a united interest must be joined on the same side, either as plaintiffs or defendants, except,” etc.

Section 10981 provides: “The court may determine any controversy between parties before it when it can be done without prejudice to the rights of others, or by saving their rights; but when a determination of the controversy between the parties before

[288 N.W. 703]

the court cannot be made without the presence of other parties, it must order them to be brought in.”

The case of Brauch v. Freking, 219 Iowa 556, 258 N.W. 892,...