Hoagland v. Van Etten

• Decision Date: 21 February 1888
• Parties: HOAGLAND v. VAN ETTEN ET AL.
• Court: Nebraska Supreme Court

23 Neb. 462

36 N.W. 755

HOAGLAND

v.VAN ETTEN ET AL.

Supreme Court of Nebraska.

February 21, 1888.

Syllabus by the Court.

Section 29 of the Code is but a statutory enactment of the rule which has prevailed in courts of equity that an action must be brought in the name of the party beneficially interested in the subject-matter. A mere assignment of a claim, therefore, where the proceeds of the suit are to be paid to the assignor, will not entitle the assignee to maintain the action. He must possess the beneficial interest.

Where a claim has been assigned to a plaintiff, and he thereby acquires the legal title, but not the beneficial interest, the court may, where it will be in furtherance of justice, upon payment of costs, permit him to acquire the beneficial interest, and proceed with the action.

The transcript of the trial court, duly certified by the clerk, will alone be recognized by this court as to all matters which are properly of record in that court.

Appeal from district court, Douglas county; WAKELY, Judge.

Application for rehearing. For original opinion, see 35 N. W. Rep. 869.

Action to foreclose a mechanic's lien, brought by George A. Hoagland against Emma L. Van Etten, as owner, Andrew Nayer, lienor, and Abner French, mortgagee. Judgment for plaintiff, and defendant Van Etten appeals.W. Switzler, for the motion.

MAXWELL, C. J.

The plaintiff has filed a motion for rehearing upon the ground, first, that the plaintiff can maintain the action upon the claims assigned to him, although he is not the actual owner thereof, but merely holds the legal title. And it is claimed that if the assignment should be held to be void, the mechanic's lien would thereby be divested and such claims lost. It is alleged that section 29 of the Code is complied with if the plaintiff has a mere naked assignment of the claim, although he is not the party beneficially interested. To this we cannot give our assent. At common law, an action was required to be brought by a party to the contract, even though he had parted with his entire interest in it by assignment. Courts of equity, however, not only recognized the right of the assignee to bring the action, but absolutely required him to do so. If the assignee was but a nominal owner, he could not sue, but the action must be brought by the real party in interest. Rogers v. Insurance Co., 6 Paige, 597;Field v. Maghee, 5 Paige, 539; 1 Van Santv. Eq. Pr. 72. An exception was made where the assignee held a nominal interest as trustee. Story, Eq. Pl. § 115. It is unnecessary, in this connection, to notice the exceptions to the general rule above stated as in case of executors and administrators, trustees of an express trust, and persons expresslyauthorized by statute to sue without joining the person for whose benefit the action is brought; but with these exceptions the rule that every action must be prosecuted in the name of the real party in interest is but a statutory enactment of the rule respecting parties which has always prevailed in courts of equity, and which such courts deemed best adapted to advance the ends of justice. Grinnell v. Schmidt, 2 Sand f.706; Hollenbeck v. Van Valkenburgh, 5 How. Pr. 284;Wallace v. Eaton, 5 How. Pr. 100;Brownson v. Grifford, 8 How. Pr. 395; Report of Com. pp. 123, 124. The framers of the Code, therefore,...