Gay v. Orcutt
| Decision Date | 28 June 1902 |
| Citation | 69 S.W. 295,169 Mo. 400 |
| Parties | GAY v. ORCUTT et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Chariton Circuit Court. -- Hon. Jno. P. Butler, Judge.
Reversed and remanded (with directions).
Allen Hamilton & Dudley and William M. Williams for appellants.
The court erred in allowing this suit to be prosecuted in the name of John L. Gay and refusing to dismiss the same on the stipulation between Gay and the defendants. None but the parties to an action will be allowed to interpose in its control; and an action commenced and carried on without authority of the parties named as plaintiff, should be dismissed. Keith v. Wilson, 6 Mo. 435; Hoover v Railroad, 115 Mo. 77; State ex rel. v. Climber, 81 Mo. 122; Fish v. Lamereaux, 48 Mo. 523; Murphy v. Smith, 86 Mo. 333; Thompson v. Elevator Co., 77 Mo. 522.
O. P Hubbell, Henry L. Eads and Harber & Knight for respondent.
On a verified motion the court made an order continuing the prosecution of this cause in the name of John L. Gay. Afterwards, Gay, in the interest of these defendants, filed a motion to dismiss, upon which motion evidence was heard and which evidence established the following facts: The case of Eads v. Orcutt, 79 Mo.App. 511, grew out of this same bank wreck. In that case this same John L. Gay, among others, assigned their claims to Mr. Eads and that case proceeded in his name through the courts; Gay's claim in that case was on a call deposit of about $ 300, while in this case it was on a time deposit for about $ 900. Gay sought Eads, after the trial and verdict in the first case, to bring this suit upon his and the other depositors' claims which Eads refused to do in his own name, but agreed that he would bring it in some one of their names. Afterwards, these depositors and creditors of the bank met in Jamesport, Missouri, with Eads and Hubbell, and made an assignment of their claims, leaving the assignee's name blank until he could be agreed upon. They agreed finally upon Gay as the assignee. He was informed of this fact by Eads and assented to it. And, while Gay tries to deny that it was agreed and arranged that this suit was to be brought in his name for all of these parties, yet this fact is established beyond doubt by Jerome L. Smith, and by Harmon B. Smith. The suit was brought first in the Daviess Circuit Court July 20, 1898. The case regularly came on for trial in September following, when Gay was present consulting with his attorneys, and at which term defendants secured a continuance finally, by Orcutt going to bed with his clothes on, but during the preliminaries for which Gay had made an affidavit for a change of venue which was in contemplation, being taken by Gay for these depositors. At this time Mr. Rush appeared as an additional attorney in the case, and when the cause was about to be sent to St. Joseph, Missouri, Mr. Rush's home town, the plaintiff Gay took a nonsuit in order to bring the case in Grundy county, which was done December 28, 1898; the case rebrought is the same in all essentials as the one first brought in Daviess county. One of the defendant's attorneys being a member of the Legislature, entitled them to a continuance at the first term in Grundy county. At the second term of that court, June, 1899, the defendants took a change of venue and the cause was sent to Chariton county; the cause reached the Chariton court in time for the July term, and, on July 13, 1899, the other depositors and plaintiffs here, learning of Gay's "entangling alliances" with the other side, filed their motion to have the cause proceed in Gay's name for their use and benefit, which the court sustained, ordering plaintiffs to give bond in the sum of $ 1,000 to indemnify Gay against costs and damages; some of plaintiffs not being in attendance upon this court and those in attendance being unacquainted in Salisbury, it was more convenient and speedy for counsel to sign their bond than to have procured others to do so, which they did. At this term defendants' attorneys came forward with a stipulation to continue the cause which had been written long prior thereto by Mr. DeVorss, one of defendants' attorneys, and signed by Gay and the Prices and Orcutt. It is not questioned but that defendants' attorneys knew all about Gay's relation to the suit; that it was the same questions and issues that had been gone through by them in the Eads v. Orcutt case; and that they were dealing with Gay with full knowledge; some one caused execution to be issued against Gay for the small amount of costs incurred in the first case in Daviess county where the nonsuit was taken, which execution was issued without the knowledge of plaintiff's counsel or a word being said to them in respect thereto, and Gay says that Jordin, ex-cashier of this bank and partner of Mr. Dudley, attorney of defendants, went to Mr. Alexander, another attorney of defendants, and brought back a stipulation which he signed dismissing the case. This was in January or February of 1899. Gay testifies that for this he was not to receive one cent. The record not only shows the utter futility of such proceedings, but furnishes, in addition, an absolute demonstration that defendants' counsel themselves had no confidence therein, for Orcutt and DeVorss take an agreement for a continuance in June after the Alexander document for dismissal which had been taken in January or February, and when Gay was asked by the court why he made an agreement to continue the case, when he had previously entered into a stipulation to dismiss it, he could not answer the question; scarcely more fortunate was his attorney, Mr. DeVorss, on this same point. If the case had been dismissed in July on Gay's stipulation for that purpose, the depositors were not yet barred by limitation, but if continued until September, six years would have elapsed since the bank's suspension and then perhaps (at least it was doubtless thought) this stipulation could be made to serve its purpose, and the eighteen or nineteen thousand dollars of claims of these parties, through Gay's machinations could be destroyed (as was doubtless supposed) by the statute of limitations. Gay denied to both Eads and Hubbell that he had made any of these secret agreements to continue or to dismiss the case; and when asked by the court why he did this, his answer was that he didn't think it was any of their business. The little item of costs never suggested itself to him, when talking to the attorneys of these other thirty-five depositors. It is suggested, again, that Mr. Gay has no protection against costs, on account of champerty; that the bond given by these thirty-five creditors to indemnify Gay is not good because their attorneys executed it on their behalf; Gay's claim is not now in question; he has abandoned his claim and his lawyers, and gone over to the other side. Then how could any arrangement or agreement between these depositors and their attorneys affect Gay, who is rescinding all his relationship to the case (which leave is granted him) and other depositors are only asking the use of his name? This record, in short, bristles with facts and circumstances showing, beyond cavil, that Gay violated his trust, attempted secretly to sacrifice the rights of those that he undertook to represent, and, when being detected therein, falsified his acts, and when hard pressed, hired the last remaining lawyer in his county, and that too at the suggestion of defendants' attorneys, to go to Salisbury, to file his motion to dismiss, which, being overruled, he abandoned it together with the defense, almost as ruthlessly as he betrayed his first trust, and we are content to leave him where the record places him, without drastic comment so much invited by his mistaken course. The law is ample to meet just such emergencies. "It has long been the practice of courts of law to look through the nominal parties, to the rights of the real parties in interest, and where a necessary nominal party, either as plaintiff or defendant, fails or refuses to use his name, either in prosecuting or defending an action at law, courts will (upon proper indemnity as to costs and damages) permit the real party in interest to use the name of the nominal party and that against the protest of the nominal party." Sumner v. Sleeth, 87 Ill. 503; 15 Ency. Plead. and Prac., 491, 547, 639; 1 Ency. Plead. and Prac., 538; Bilmyer v. Sherman, 23 W.Va. 656; Linsey v. McGannon, 9 W.Va. 154; Tayon v. Ladew, 33 Mo. 209; Express v. Haggard, 87 Am. Dec. 259; Childs v. Thompson, 81 Mo. 337; Lilly v....
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