Carrington v. Crandall

• Citation: 124 P.2d 914,63 Idaho 651
• Decision Date: 21 April 1942
• Docket Number: 7012
• Parties: C. E. CARRINGTON, Appellant, v. LYNN CRANDALL, GEORGE E. WOOD, MRS. GEORGE E. WOOD, GOLDEN (DODD) WOOD, HENRY BATES, MRS. HENRY BATES, NORMA DUSTIN, MRS. NORMA DUSTIN, RALPH BYRNE and MRS. RALPH BYRNE, Respondents
• Court: United States State Supreme Court of Idaho

124 P.2d 914

63 Idaho 651

C. E. CARRINGTON, Appellant, v. LYNN CRANDALL, GEORGE E. WOOD, MRS. GEORGE E. WOOD, GOLDEN (DODD) WOOD, HENRY BATES, MRS. HENRY BATES, NORMA DUSTIN, MRS. NORMA DUSTIN, RALPH BYRNE and MRS. RALPH BYRNE, Respondents

No. 7012

Supreme Court of Idaho

April 21, 1942

ABATEMENT AND REVIVAL-REAL PARTY IN INTEREST.

1. Under statute providing in case of a transfer of interest the action may be continued in the name of the original party or the court may allow transferee to be substituted, where plaintiff transferred land and water rights by absolute deed during pendency of action to quiet title to water rights and no application was made that the real party in interest be made a party to the action and plaintiff objected to transferee being made a party, plaintiff was not the "real party in interest" and was not entitled to maintain the action, notwithstanding that conveyance may have been without consideration. (I. C. A., secs. 5-301, 5-319.)

2. As between the transferee and the transferor, a statute authorizing the continuance of a suit after a transfer of the subject matter in the name of the original party or by the transferee, exists solely for the benefit of the transferee and transferee alone may elect as to whether the action shall be carried on in the name of the original party or whether he will proceed as a substituted party and that the action is carried in the name of the original party, does not make the original party a "party in interest," that may thereafter control the procedure of the action.

3. A "real party in interest," within the meaning of the code requiring every action to be prosecuted in the name of the real party in interest, is the person who will be entitled to the benefits of the action if successful, one who is actually and substantially interested in the subject matter. (I. C. A., secs. 5-301, 5-319.)

APPEAL from the District Court of the Ninth Judicial District of the State of Idaho, in and for the County of Teton. Honorable C J. Taylor, Judge.

Judgment granting motion for non-suit and dismissing action, affirmed.

Judgment affirmed. Costs to respondents.

A. A Merrill and L. H. Merrill, for Appellant.

S. H. Atchley and C. W. Poole, for Respondents.

"Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by this code." (I. C. A. 5-301; 21 C. J. Page 304, Sec. 304; Henry Holt & Co., to Use of Felderman, v. Liggett & Meyers Tobacco Co., 32 F.Supp. 302; Bower v. Moorman, 27 Idaho 162, 172.)

A defendant in an action involving a property right is entitled to have the action prosecuted in the name of, and by the real party in interest so that any judgment, either in his favor or against him, will, upon its satisfaction, bar any other action upon the same cause. (Simpson v. Miller, 94 P. 252, 255.)

BUDGE, J. Givens, C. J., and Morgan, Holden, and Ailshie, JJ., concur.

OPINION

BUDGE, J.

This action was brought by appellant to quiet title to the right to the use of 160 inches of the waters of Mahogany Creek in Teton County. The cause regularly came on for trial, evidence, oral and documentary, was offered and introduced on behalf of appellant whereupon appellant rested. Respondents thereupon moved the Court for judgment of non-suit upon several grounds. If we are correct in our conclusion, there is but one ground of the motion that needs consideration, namely, that the evidence introduced by appellant, without contradiction, established the fact that appellant had conveyed to one Eleanore Patterson pendente lite, by absolute conveyance, the subject matter of this action; that he was no longer a real party in interest in the action. Whereupon the trial court granted the motion for non-suit and dismissed the action, from which judgment this appeal is prosecuted.

The following facts appear from the record. Appellant filed his complaint on August 27, 1941. On October 13, 1941, he made, executed and delivered a deed, conveying the land and the water right described in his complaint, to Eleanore Patterson of Washington, D. C., who was not made a party. With reference to the title to the land and the water right, appellant testified on direct examination as follows:

"Q. Have you ever sold any of your water right, which is the subject of this litigation?

"A. No sir.

"Q. Do you still own it?

"A. I still own it."

On cross-examination, appellant testified:

"Q. I believe you testified yesterday, Mr. Carrington, that you still own the land that you occupy and the water right appurtenant to it?

"A. I have possession of it at the present.

"Q. Did you testify yesterday that you still owned it?

"A. I may have. I dont know.

"Q. Well, do you still own it?

"A. No sir.

"Q. Neither the land, nor the water right?

"A. No sir.

"Q. Who owns it?

"A. A lady by the name of Patterson."

Appellant testified on re-direct examination:

"Q. When you sold your property a few days ago, I ask you now if you received any consideration, whatsoever, for it?

"A. No, I haven't any, yet.

"Q. The deed recites one dollar consideration, did you receive that one dollar?

"A. No sir.

"Q. Do you still have possession of that property?

"A. I certainly do."

On re-cross-examination:

"Q. The deed recites 'Other valuable consideration.' What was the other valuable consideration?

"A. That's up to the lady's own price. * * * She can give me whatever she likes.

"Q. Well, what other valuable consideration have you received?

"A. None.

"Q. That deed was drawn at your suggestion and request?

"A. We have had correspondence among ourselves, and I sent it to her, and she said she would accept it. I got my notice this morning.

"Q. And so far as you and the lady are concerned the transaction is closed?

"A. Not until I get my dollar, and what she intends to give me."

The record discloses that counsel for appellant made a statement in effect that it was their first intention, before the court ruled on the motion, to amend their pleadings and make the real party in interest, the legal owner, a party to the action, but having no opportunity to consult with her, she being in Washington, D. C., no amendment in this respect would be requested. From appellant's evidence, it is clear that he had parted with title to both the land and the water right by an absolute deed of conveyance thereof; that one Eleanore Patterson was the real party in interest, the legal owner, and was not made a party to the action due to the objection of appellant. There is no evidence in the record that Eleanore Patterson had knowledge of the pendency of the action, or that would justify the conclusion that appellant had such interest therein as would entitle him to maintain the action. I. C. A., sections 5-301 and 5-319, provide:

(5-301)

"Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by this code."

(5-319)

"An action or proceeding does not abate by the death or any disability of a party, or by the transfer of any interest therein, if the cause of action or proceeding survive or continue. In case of the death or any disability of a party, the court, on motion, may allow the action or proceeding to be continued by or against his representative or successor in interest. In case of any other transfer of interest the action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding." [Italics ours.]

In Cranmer v. Howard, 45 S.D. 218, 183 N.W. 124, under a statute substantially the same as section 5-319, supra, will be found the following language:

"It seems to be generally held to be against public policy to permit parties having no actual interest in a controversy other than costs to further prosecute and defend an action. The provisions of the statute (section 2317 Rev. Code 1919) authorizing the continuance of a suit, after a transfer of the subject-matter, in the name of the original party, or by the person to whom a transfer has been made, exists solely for the benefit of the transferee, and not for the benefit of the assignor. The transferee alone has the right to elect as to whether the action, after a transfer of subject-matter, shall be carried on in the name of the original party, or whether he will proceed as a substituted party in his own name. The fact that after such transfer the action may be carried on in the name of the original party does not make such original party a party in interest that may thereafter in any manner control the procedure of the action. In the case of Sykes v. Beck, 12 N.D. 242, 96 N.W. 844, the Supreme Court of North Dakota, under a like statute, said:

'The statute of California is substantially like our own. It has been uniformly held in that state that, when the subject-matter of a pending action is transferred, it is the right of the transferee to prosecute and defend that action either in the name of the original party, or to request a substitution, and further, that the assignor pendente lite is, after the assignment, divested of further authority to control the action.' [Citing cases.]

* * * *

"Under elementary rules of pleading and practice, where a defendant transfers his interest pendente lite the original plaintiff in order to acquire jurisdiction over the person of the transferee, if he so desires, must, by...