Nixon v. Dillard

• Decision Date: 13 April 1896
• Citation: 73 Miss. 803,19 So. 959
• Court: Mississippi Supreme Court
• Parties: E. B. NIXON ET AL. v. P. A. DILLARD ET AL

19 So. 959

73 Miss. 803

E. B. NIXON ET AL. v. P. A. DILLARD ET AL

Supreme Court of Mississippi

April 13, 1896

March 1896

FROM the circuit court of Pontotoc county HON. NEWNAN CAYCE Judge.

In June, 1892, E. B. Nixon filed his declaration in assumpsit against Dillard & Johnson, to which defendants pleaded non assumpsit. At the July, 1893, term of the court plaintiff obtained leave of the court to amend his declaration, the order of the court being as follows: "This day came the plaintiff by attorney, and thereupon leave is granted him to amend his declaration by inserting, 'Who sues for the use of Clark, Hood & Co.'" No amendment having been made in the meantime, at the July, 1895, term of the court, leave was granted to "the plaintiff" to further amend "his" declaration, and an amendment was thereupon filed, which beginning with the words: "And the said usees, Clark, Hood & Co., by leave of the court, first had and obtained, would state and show as follows, " sets out an indebtedness of the defendants to them, Clark, Hood &amp Co., for which "plaintiffs" demanded judgment. The defendants demurred to the amended declaration, and their demurrer having been overruled, they pleaded, by leave of court, non assumpsit and the bar of the three years' statute of limitations. The "plaintiffs" demurred to the plea of the statute of limitations, and their demurrer, like that of defendants to the amended declaration and defendants' pleas of non assumpsit and the statute of limitations, is under the caption "E. B. Nixon, use of Clark, Hood & Co. v. P. A. Dillard and W. F. Johnson." The verdict and judgment were for the "plaintiffs, " the latter being under the caption "E. B. Nixon et al. v. P. A. Dillard and W. F. Johnson, and awards a recovery of the amount claimed to "plaintiffs, Clark, Hood & Co."

A motion for a new trial was made by the defendants, and sustained, "plaintiffs" excepting. Defendants, by leave of court, again pleaded the three years' statute of limitations, and plaintiffs refusing to demur or reply to the plea, the court gave judgment final for defendants. From that judgment this appeal was prosecuted. The "plaintiffs'" bill of exceptions to the action of the court in setting aside the verdict and judgment thereon, and granting a new trial, is under the caption "E. B. Nixon and Clark, Hood & Co. v. Dillard & Johnson, " and the depositions incorporated therein are under the caption "Clark, Hood & Co. v. Dillard & Johnson." The "plaintiffs'" special bill of exceptions to the action of the court in permitting the plea of the statute of limitations to be refiled, is under the caption "Clark, Hood & Co. v. Dillard & Johnson." The motion of defendants for a new trial, and the order granting the same, are both under the caption "E. B. Nixon et al. v. Dillard & Johnson, " the latter showing that the "plaintiffs" excepted and tendered "their" bill of exceptions. The appeal was prosecuted by E. B. Nixon and Clark, Hood & Co. The evidence is stated substantially in the opinion of the court.

Judgment affirmed. Suggestion of error overruled.

Blair & Anderson, for appellants.

The most important assingment of error is that the court erred in granting a new trial. Counsel for appellee, in his argument on the motion for an ew trial, relied upon the alleged error of the court in allowing the amendment setting up the novation. Section 717 of the code of 1892 provides full power to allow all amndments so as to bring the merits of the mistakes in the name of any party to be corrected. There is no limitation as to new parties. These may be changed ad libitum so as to bring the merits of the controversy fairly to trial. Kohlman v. Bank, 71 Miss. 843; Mitchell v. McDavit, 70 Miss. 608; Shannon v. Rester, 69 Miss. 238; Tully v. Herring, 44 Miss. 627; Montague v. King, 37 Miss. 441; Noble v. Terrel, 64 Miss. 830; Duff v. Snider, 54 Miss. 245; 43 Miss. 189; Hubler v. Pullen, 68 Am. Dec., 620 and notes; Price v. Wiley, 70 Am. Dec., 323.

The amendment is anew count in the declaration, in the name of Clark, Hood & Co., but against the same defendants, referring to the same subject-mattrer. The merits of the controversy in both are the same. It was so far a new suit as to require it to be pleaded to, but does not constitute a new suit; therefore, the statute of limitations did not run to the date of the amendment. Field v. Wier, 28 Miss. 65; Parisot v. Helm, 52 Miss. 622; Shaw v. Brown, 42 Miss. 309. No question of legal title was involved in the case. There might have been a contest of that sort, but you scan the record in vain to find any indication of it.

J. D. Fontaine, for appellees.

There was no error in sustaining appellees' motion to set aside the verdict of the jury and granting them a new trial. Courts of law can only take cognizance of legal titles. The legal right in plaintiff to the matter in dispute is the necessary foundation of every action at law. Wilson v. McElroy, 2 Smed. & M., 241; Beard v. Griffin, 10 Smed. & M., 586; Newell v. Fisher, 2 Cush., 392; Dowell v. Brown, 13 Smed. & M., 43; Eckford v. Hogan, 44 Miss. 398. And plaintiff must have legal title at the commencement of the suit. Eckford v. Hogan, supra; Dowell v. Brown, supra.

This suit was brought by Nixon; the declaration asserts legal title to the claim sued on in him. The second amended declaration sets forth a novation of the debt before the institution of the suit, and all the evidence of plaintiff establishes this fact, which placed the legal title in Clark, Hood & Co. before the institution of this suit, and suit could only have been brought in their name. Adams v. Power, 48 Miss. 450. The first amended declaration did not make Clark, Hood & Co. parties to the suit, nor was the action maintainable in the name of Nixon, because the legal tilte was in Clark, Hood & Co. Beck v. Rosser, 68 Miss. 72.

OPINION

COOPER, C. J.

While under our laws amendments to the pleadings are liberally allowed, the insuperable obstacle to the appellants' success is that, throughout the proceedings in the court below, they pleaded in reference to a right of action the legal title to which was in Nixon, and proved one the legal title to which was in Clark, Hood & Co. The original declaration was by Nixon, setting up a right of recovery in himself; it was in the ordinary count for goods sold and delivered by the plaintiff to the defendant. The amended declaration was in the name of Nixon, for the use of Clark, Hood & Co., and it set up a right of action in Clark, Hood & Co., arising from a contract of novation, by which, by agreement of all the parties, Dillard & Johnson, who were indebted to Nixon, agreed to pay what they owed him to Clark, Hood & Co., to whom Nixon was indebted, and Clark, Hood & Co. released Nixon and agreed to accept the promise of Dillard & Johnson. When this contract was made, Nixon disappeared from the scene, and no longer had any right, legal or equitable, to the cause of action; that was vested in Clark, Hood & Co., who should have sued upon it in their own name. But the evidence did not correspond with the pleadings as amended, for it showed that Dillard & Johnson had never at any time been indebted to Nixon. They agreed to buy certain machinery owned by Nixon, on which Clark, Hood & Co. had a mortgage, to secure a debt due to them by him, and it was agreed between all the parties that Nixon should sell the machinery to Dillard & Johnson, who were to pay the purchase money to Clark, Hood & Co., and, in consideration of their promise, Clark, Hood & Co. discharged their claim against Nixon. So that, by the very terms of their original contract, Dillard & Johnson promised Clark, Hood & Co. to pay them the money; they made no promise, and came under no obligation whatever to Nixon. Whether, therefore, the facts were as stated in the declaration, or as proved, the legal relation between Nixon and all the other parties was terminated. Clark on Contracts, p. 614, note 19.

One who has not the legal title to a chose in action cannot maintain a suit in his own name for the use...