Gaines v. Hume, Sheriff

• Decision Date: 04 June 1926
• Parties: Gaines v. Hume, Sheriff of Boone County.
• Court: United States State Supreme Court — District of Kentucky

Page 27

215 Ky. 27

Gaines v. Hume, Sheriff of Boone County.

Court of Appeals of Kentucky.

Decided June 4, 1926.

1. Subscriptions — Sheriff Held Entitled to Prosecute in His Own Name Action on Note, Proceeds of which were Intended to be Used for Public Purpose (Civil Code of Practice, Sections 18, 21). — Under Civil Code of Practice, section 21, creating exception to rule under section 18 that every action must be prosecuted in name of real party in interest, sheriff held entitled to maintain suit in his own name for collection of note representing subscription to fund for public purpose, and proceeds of which were to be used for purpose intended.

2. Subscriptions — Answer to Action on Note Subscribed in Aid of Primary Federal Aid Road, Setting up Change in Route Represented, but Failing to State Person Making Representations and His Authority and Effect of Proposed Change on Expected Benefits, Held Insufficient. — In action on subscription note to fund for construction of primary federal aid road along certain highway, reciting as consideration benefit to be derived, answer alleging that route was to be upon an entirely different location than represented, but failing to allege person making representation and his authority to do so, and that there was any alteration of route which would materially affect expected benefits, held insufficient.

Appeal from Boone Circuit Court.

O.M. ROGERS for appellant.

JOHN L. VEST and B.H. RILEY for appellee.

OPINION OF THE COURT BY TURNER, COMMISSIONER.

Affirming.

Appellee filed this action on a $500.00 note payable to "the sheriff of Boone county, Kentucky."

The answer was in four paragraphs, two of which were withdrawn, and the court sustained a demurrer to the other two, and from such action this appeal is prosecuted.

The note on its face recites:

"For the purpose of aiding Boone county, Ky., in raising one-fourth of the cost of the construction of a primary federal aid road along the Dixie Highway through Boone county from Walton to Florence, the consideration being the benefit I will derive therefrom, by my subscription and the subscriptions of others, I promise to pay, etc."

One paragraph of the answer alleges that the plaintiff as sheriff or otherwise has no interest in the note sued on, and therefore has no right, power or authority to institute or maintain the action, because the same has not been brought and is not prosecuted in the name of the real party in interest.

Section 18 of the Civil Code provides that every action shall be prosecuted in the name of the real party in interest, except as provided in section 21; and section 21 provides:

"A personal representative, guardian, curator, committee of a person of unsound mind, trustee of an express trust, a person with whom or in whose name a contract is made for the benefit of another, a receiver appointed by a court, as assignee of a bankrupt, or a person expressly authorized by statute to do so, may bring an action without joining with him the person for whose benefit it is prosecuted."

The authority in the quoted section for a person with whom or in whose name a contract is made for the benefit of another to institute and prosecute an action is too explicit to need...