Conner v. The Southern Express Co.

• Decision Date: 31 January 1871
• Citation: 42 Ga. 37
• Parties: MARTTN CONNER, plaintiff in error. v. THE SOUTHERN EXPRESS COMPANY, defendant in error.
• Court: Georgia Supreme Court

42 Ga. 37

MARTTN CONNER, plaintiff in error. v. THE SOUTHERN EXPRESS COMPANY, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1871.)

Abatement. Bankruptcy. Before Judge Johnson. Muscogee Superior Court, May Term, 1870.

Conner brought case against said company for the loss of his goods. When the cause was called for trial, defendant's counsel said plaintiff could not proceed because, pendente lite, Conner was adjudged a bankrupt. This was admitted, and plaintiff's counsel then proposed to make Conner's assignee in bankruptcy a party plaintiff. It was replied that he had been discharged and this was admitted; but the assignee was present and consented to be made a party. The Judge said the cause had abated, and refused to make the assignee a party. Conner's counsel then stated that they were interested, having a fee of fifty per cent. on the recovery, and proposed to have the cause proceed in Conner's name for their use. This was refused, nothing more appeared and the cause was held to have abated. These refusals and this holding are assigned as error.

H. L. Benning, J. F. Pou, Peabody & Brannon, for plaintiff in error.

Moses & Gerrard for defendant in error, said party having legal interest must sue: Code, sec. 3192. If he be dead, suit abates, sees. 3375, 43, 18. Bankrupt Act, 1867, shows that assignee must act, and if one be discharged, another must be appointed. It could notproceed for attorney\'s benefit: 36th Ga. R., 630. Bankrupt is civiliter mortuus: *24th Ga. R., 494. Usee real party Code, sees. 3437, 2848. Assignee must sue: 1 Ch. PI., *25; 3 Bos. and Pul., 40; 3 B. and Aid., 697; 7 East, 53; Eden B. L. 244..

McCAY, J.

This is an anomalous case. Pending the proceedings inbankruptcy, and until the assignee was discharged, we are not clear that, under the Bankrupt law of the United States the bankrupt could proceed in his own name: United States Bankrupt Law, sections 18, 43, 16. Though it would seem that, by the English practice, where the rules of pleading too are very precise, the suit may proceed in the name of the bankrupt: 2 Wilson, 372; 3 T. R., 437; 7 East, 64; 1 T. R., 463: 1 B. and Adol., 459; 2 Daniel and L., 49; 3 Taunt, 59, and Peck v. Jenniss, et al., 7 Howard, 612.

But it appears that the proceedings in bankruptcy have been concluded, the whole matter settled and the assignee discharged. We must conclude that, for some proper reason, the title to this claim has reverted to the bankrupt. Prima facie, that is true, because the assignee has not undertaken to control it. It may have been left to the bankrupt after paying all his debts. It may have been allowed him as his poor debtors' exemption under the Bankrupt law. It may have been allowed to him on a composition with his creditors, as provided by the Act, even after the fiat of Bankruptcy. We do not assert as true, any of these things. The...