McFadin v. Macgreal

• Decision Date: 01 January 1860
• Citation: 25 Tex. 73
• Parties: JAMES MCFADIN v. PETER MACGREAL.
• Court: Texas Supreme Court

25 Tex. 73

JAMES MCFADIN

v.PETER MACGREAL.

Supreme Court of Texas.

1860.

Where suit is brought in the name of a party for the use and benefit of another, and it appears from the petition that the former has no interest in the litigation (as a suit in the name of the assignor for the use of the assignee of a judgment), his name is used as a mere matter of convenience, and he is not supposed to be present in court, either in person or by attorney. He is a merely nominal party on the record.

He is not to be deemed, for the purposes of the litigation, a party to the suit, and no recovery can be had against him (unless possibly for costs) without first making him a party by the service of process upon him, so that he may be afforded an opportunity to appear and protect his interests. A judgment against him, without service, on a plea in reconvention by the defendant, is coram non judice, and void. 20 Tex. 162;post, 98.

ERROR from Brazoria. Tried below before the Hon. George W. Smith.

This suit was brought on the 10th day of September, 1858. The petition, so far as it need be set out, was in substance as follows:

“The petition of James McFadin, who resides in the county of Smith, in the state aforesaid, and who sues for the use of Jack Davis, who is also a resident of said county of Smith, complaining and moving against Peter MacGreal, who is an attorney and counselor-at-law, and who resides in the county of Brazoria aforesaid, in the state aforesaid, and within the jurisdiction of this honorable court, respectfully shows unto your honor, that heretofore, to wit: on the 18th day of May, A. D. 1855, your petitioner, the said James McFadin, in and by the consideration and judgment of this honorable court, recovered a judgment against Barbara M. Calvit for the sum of seven thousand two hundred dollars, which said judgment, on the appeal of said Barbara M. Calvit, to the supreme court of the state of Texas, was on the 16th day of February, A. D. 1856, by the supreme court aforesaid, affirmed, and judgment awarded against the said Barbara M. Calvit, and John H. Herndon, and F. J. Calvit, her securities upon said appeal.”

The petition alleged the collection of the judgment by the defendant, and that, on the 22d day of June, 1858, McFadin transferred and assigned the said judgment to Davis before he knew of the collection aforesaid by the defendant. The prayer of the petition is as follows:

“Therefore the said James McFadin brings this his suit and motion against the said Peter MacGreal, and prays that the said motion be sustained, and that a rule and judgment be entered and recorded against said Peter MacGreal for the amount by him collected as aforesaid, with legal interest thereon. And also for his damages, not less than ten per centum, nor more than twenty per centum, to be computed on the principal sum, according to the form of the statute in such cases made and provided. And the said James McFadin further prays for citation to the said Peter MacGreal to appear and answer the premises; and for such other and further relief as the nature of his case may require, and to this honorable court may seem meet and right; and as in duty bound the said James McFadin will ever pray.

+---------------------------------------------+
                ¦(Signed)¦JACK DAVIS, Attorney for plaintiff.”¦
                +---------------------------------------------+
                

The defendant pleaded that before the assignment and transfer to Davis, he held the promissory notes of McFadin for the sum of $50,000, and at the time of receiving them for the purchase of certain lands by him sold to McFadin, he allowed him a credit on said purchase money to the amount of said judgment, deducting commissions for collecting, for the amount of which judgment debt McFadin executed to him a receipt, of all which he alleged Davis had notice before the date of the transfer.

He also pleaded in offset against McFadin an account for money loaned, paid out and expended for him at his request, for $2,441, and for professional services rendered him in certain causes amounting to $1,750.

On the calling of the cause for trial, it is recited in the minutes that McFadin and his attorney, Davis, failing to appear, and having filed an order to discontinue this cause against the said MacGreal, the court retained the suit as to the defendant's plea in set-off and reconvention. And the defendant proceeded ex parte to the trial of the matters of account before referred to, and on the verdict of the jury in his favor recovered a judgment against McFadin for $3,146.65.

It does not appear that McFadin was served with process or otherwise notified of any of the proceedings had in the cause. There was no statement of facts nor bill of exceptions.

The plaintiff in error assigned as error:

The rendition of said judgment.

The want of jurisdiction to render the same.

That the court had no jurisdiction over the plea in reconvention, or cross-action by the defendant against the plaintiff in error.

That no evidence should have been received of any claim or demand against him founded on the answer.

That the plaintiff having discontinued the suit on his part, the defendant could not recover a judgment in reconvention for damages against the nominal plaintiff.

Ballinger & Jack, for the plaintiff in error. To reverse the judgment of the court below, we rely on the following points and authorities:

McFadin was a merely nominal and formal party, whose name was used by Davis, by whom and for whose use and benefit the suit was brought, and who is to be regarded as the real party and actor in the suit. The litigation was substantially between Davis and MacGreal; and although the cause of action was subject in Davis' hands to any defense or set-off which existed to it in the hands of McFadin prior to the assignment, yet McFadin was not before the court, so as to make him liable to any other or further cross-action or reconvention on the part of MacGreal.

The petition alleges the assignment of the judgment against Mrs. Calvit and others by McFadin to Davis on the 22d of June, 1858, prior to any advice of its collection and authority to Davis to take, in the name of said McFadin, all lawful ways and means for the recovery of the moneys due thereon.

The defendant alleged that the assignment was made fraudulently, etc., but did not deny the fact of the assignment, which he could only have done under oath. Hart. Dig. art. 2524.

Davis, as the assignee of the judgment, had the legal right to use the name of McFadin as the nominal plaintiff for his own use and benefit. The judgment was in the name of McFadin; the execution run in his name; the assignment to Davis vested in him the beneficial and equitable interest, but could not convert them into a judgment and execution in his favor, and McFadin still remained the legal party to the record and the party in whose name the judgment must continue and the execution proceed. Our statute regulating assignments, etc., has no application to judgments. It authorizes the assignee of “ any bond or other written instrument” to “maintain an action in his own name,” but this clearly does not include judgments. Clay v. Clay, 13 Tex. 195;Wahrenberger v. Horan, 18 Tex. 57. And see the construction of a similar statute in Mississippi and elsewhere. “The assignee of an instrument not embraced in the statute stands as at common law.”

We believe, that under the equity powers of our courts, the assignee of a judgment might sue in his own name, though the rule in equity would make the assignor also a proper party.

But there can be no objection to the suit in the name of the party having the legal interest for the use of the equitable owner; and where the course is pursued in conformity with all precedent, and out of abundant caution, it would not be permitted to work any detriment to the right of either the formal or actual party plaintiff.

The petition in this case was so framed as to embrace the “ motion” against the defendant, MacGreal, as an attorney and counselor of law, who had collected money and refused to pay it over, which is authorized by the statute (Hart. Dig. art. 62); in which damages of not less than ten nor more than twenty per cent. on the principal sum are awarded in addition to the legal interest; and it was considered that only the legal party to the judgment could make that motion. See Beaver v. Battle, 19 Tex. 111.

Returning to the general principles of law applicable to the case, Davis had the absolute right to use the name of McFadin for his own benefit in prosecuting this suit or any proceedings proper to give full effect to the assignment. This he might do without the knowledge or assent of McFadin, other than the assent implied in the...