Pickett & Pickett v. Everett ex rel. Yallaly
| Decision Date | 31 July 1848 |
| Citation | 11 Mo. 568 |
| Parties | PICKETT & PICKETT v. EVERETT, USE OF YALLALY. |
| Court | Missouri Supreme Court |
ERROR TO CLINTON CIRCUIT COURT
LEONARD, for Plaintiffs.
1. The claimant having voluntarily suffered a nonsuit, and his motion to set it aside being overruled, cannot by appeal from such a decision remove the cause into the Circuit Court. 2. The demand is exhibited in the County Court in the name of Yallaly, while the judgment of the Circuit Court is in favor of Everett, to the use of Yallaly. In the County Court Yallaly is the plaintiff-- he exhibits the claim--prosecutes the suit--makes affidavit--executes the bond, and takes the appeal; but in the Circuit Court a new party is introduced upon the record, and the original plaintiff is reduced to a mere beneficiary, for whose use the new party prosecutes the suit. 3. A bond given to an unmarried woman, who afterwards marries, is still a chose in action, although it be in the possession of the husband during the marriage, and upon her death belongs to her personal representatives, and not to her surviving husband, and therefore the court, in the instructions withheld and in those given, as well as in its final judgment of allowance, manifestly erred. Nash v. Nash, 2 Mad. R. 411; 1 Williams on Executors, 605-60; McNalage v. Holloway, 1 Barn. & Ald. 218.
This was a suit commenced in the County Court, and taken by appeal from that court to the Circuit Court, and thence to this court. In the County Court the plaintiff took a non-suit, because he was refused permission to read in evidence the bond on which suit was brought, and after an unsuccessful motion to set it aside, he appealed to the Circuit Court.
F. Wilkinson, the intestate of the plaintiffs in error, executed to Frances Wilkinson, a feme sole, the bond sued on. After the execution of the bond, Frances Wilkinson, the obligee, intermarried with John Everett, and shortly thereafter died. Subsequent to the death of his wife, Everett delivered the bond, without indorsement, to Yallaly, in payment for medical services rendered to his wife.
The question is whether, under these circumstances, the plaintiff can maintain this action?
It can be hardly necessary to say that the fact of the bond having been in custody of the husband after the death of the wife, although he might have received it during her life-time, is not a reduction of it into possession in the sense in which that phrase is used in the law. That could only have been done by receiving...
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Leete v. State Bank of St. Louis.
...the choses in action of the wife, is not a vested interest in property. Hart v. Leete, 104 Mo. 315; Leakey v. Maupin, 10 Mo. 368; Pickett v. Everett, 11 Mo. 568; Gillet Camp, 19 Mo. 404; Walker v. Walker, 25 Mo. 367; Coughlin v. Ryan, 43 Mo. 99; Hunt v. Thompson, 61 Mo. 148; Wood v. Simmons......
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Southern Bank of Fulton v. Nichols
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