Stinchcomb v. Patteson

• Citation: 66 Okla. 80,167 P. 619,1917 OK 446
• Decision Date: 11 September 1917
• Docket Number: Case Number: 7476
• Court: Supreme Court of Oklahoma
• Parties: STINCHCOMB et al. v. PATTESON.

1917 OK 446

167 P. 619

66 Okla. 80

STINCHCOMB et al. v. PATTESON.

Case Number: 7476

Supreme Court of Oklahoma

Decided: September 11, 1917

Syllabus

¶0 Parties--Necessary Parties.

All parties who are united in interest as parties plaintiff in the subject-matter of the litigation must be joined as plaintiffs, unless the consent of one who should have been joined cannot be obtained, in which event he may be made defendant; the reason therefore being stated in the petition.

Error from District Court, Oklahoma County; R. McMillan, Assigned Judge.

Suit by G. E. Patteson, doing business as G. E. Patteson & Co., against L. Stinchcomb and R. E. Robey, doing business as the Stinchcomb Grain Company. Judgment for plaintiff, and defendants bring error. Reversed, with instructions.

Everest & Campbell, for plaintiffs in error.

Keaton, Wells & Johnston, for defendant in error.

WEST, C.

¶1 This suit was instituted in the district court of Oklahoma county by G. E. Patteson, doing business as G. E. Patteson & Co., against L. Stinchcomb and R. E. Robey, doing business as the Stinchcomb Grain Company. The petition contains three causes of action stated in separate counts. In the first count, plaintiff sought to recover overcharges included in draft attached to bill of lading on cars of alfalfa hay sent shippers order by defendants to the plaintiff at Memphis, Tenn., and in the second and third counts for damages on account of the failure of defendants to fulfill certain contracts for delivery of alfalfa hay at Memphis, Tenn. Cause went to trial to a jury on the 23d day of December, 1914, and on the 24th day of December, 1914, a general verdict was rendered in favor of plaintiff and against defendants for the sum of $ 633.73. Plaintiffs in error, defendants below, prosecute this appeal against defendant in error, plaintiff below, to review this verdict and judgment entered thereon. For convenience the parties will be designated as they were below. This cause was submitted and an opinion delivered in the case by the court in September, 1916, reversing said cause on account of the admission by the trial court of incompetent evidence offered to establish plaintiff's first cause of action Plaintiff then filed a remittitur as to first cause of action and petition for rehearing, which remittitur was allowed and petition for rehearing granted, and cause is now to be considered on errors assigned applying to second and third causes of action stated in plaintiff's petition. Suit was brought by G. E. Patteson, alleging that he was a sole trader doing business under the name of G. E. Patteson & Co., and in his reply to the answer filed by defendants, plaintiff designated himself in the same manner as in the petition. During the trial of the case plaintiff, G. E. Patteson, testified that G. E. Patteson & Co. was a firm composed of G. E. Patteson and John R. Pepper, and at the conclusion of the evidence, defendants interposed a demurrer on the ground that plaintiff had failed to make out a case for the reason that there was a defect of parties plaintiff, and that the suit had not been brought in the name of the real parties in interest. This contention was urged by defendants in a motion for judgment notwithstanding the verdict and motion for new trial and the action of the trial court in failing to sustain this contention of the defendants is complained of here.

¶2 Sections 4681, 4690, 4691, and 4692, Rev. Laws 1910, are as follows:

"4681, Plaintiff to be Party in Interest. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in this article; but this section shall not be deemed to authorize the assignment of a thing in action, not arising out of contract."

"4690. Joinder of Parties Plaintiff. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this article.

"4691. Joinder of Parties Defendant. Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.

"4692. All Interest to be Joined. Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason being stated in the petition."

¶3 In the case of St. Louis & San Francisco Railway Co. v. Webb, 36 Okla. 235, 128 P. 252, the second paragraph of the syllabus is as follows:

"Parties Plaintiffs -- Who must Join. Where two parties have a joint interest in property, they must join in an action for injuries to such property."

¶4 In the body of the opinion the court uses the following language:

"Persons who have a joint interest must sue jointly for an injury to such interest. Joint owners of property must unite as plaintiffs in one action for an injury thereto or for a conversion thereof."

¶5 In case of Jackson et al. v. McGilbray, 46 Okla. 208, 148 P. 703, the court in the second paragraph of the syllabus lays down the following rule:

"Plaintiff in a suit in ejectment is not 'the real party in interest,' as intended by section 4681, Rev. Laws 1910, unless he is a party who may be benefited or injured by the judgment in the case."

¶6 In the body of the opinion the court uses the following language:

"It is provided by statute (Rev. Laws 1910 § 4681): 'Every action must be prosecuted in the name of the real party in interest. * * *' The real party in interest is the party who is to be benefited or injured by the judgment in the case. Stewart v. Price, 64 Kan. 191, 67 P. 553, 64 L. R. A. 581; Bliss on Code Pleadings, sec. 45; Kinsella v. Sharp, 47 Neb. 664, 66 N.W. 634; Lampkin v. M. & O. R. Co., 146 Ky. 514, 142 S.W. 1037; Hoagland v. Van Etten, 22 Neb. 681. 35 N.W. 869, affirmed on rehearing in 23 Neb. 462, 36 N.W. 755; Simpson v. Miller, 7 Cal. App. 248, 94 P. 252; Swift v. Ellsworth. 10 Ind. 205, 71 Am. Dec. 316; Bostwick v. Bryant, 113 Ind. 448, 459, 16 N.E. 378, 383; Grimes v. Cannell, 23 Neb. 187, 36 N.W. 479. In Pomeroy's Code Rem. sec. 76, it is stated: 'It is no longer, consistently with the provisions of the Codes, possible for one person to sue "to the use of" another, as was common in some states. The parties beneficially interested must themselves bring the action.' Brady v. Chandler, 31 Mo. 28; Weise v. Gerner, 42 Mo. 527; Van Doren v. Relfe, 20 Mo. 455; Lytle v. Lytle, 2 Metc. (Ky.) 127, 128; State v. Johnson, 52 Ind. 197; Shane v. Francis, 30 Ind. 92; Hollister v. Hubbard, 11 S.D. 461, 78 N.W. 949; Guernsey v. Tuthill, 12 S.D. 584, 82 N.W. 190; Frye v. Bank of Illinois, 10 Ill. 332."

¶7 In Words and Phrases, Second Series, vol. 4, page 132, a "real party in interest" is defined as follows:

"The test of whether one is the real party in suit is, Does he satisfy the call for the person who has the right to control and receive the fruits of the litigation? The rule is stated in a recent ably written work thus: 'The real party in interest, within the meaning of the provision of the Code, is the person who will be entitled to the benefits of the action if successful; one who is actually and substantially interested in the subject-matter, as distinguished from one who has only a nominal, formal, or technical interest in or connection with it.' Gross v. Heckert, 120 Wis. 314, 97 N.W. 952, 954."

¶8 In case of Niblo v. Drainage Dist No. 3 et al., 58 Okla. 639, 160 P. 468, the court in the second paragraph of the syllabus, lays down the following rule:

"'Defect of parties' means too few and not too many parties, and hence is not synonymous with 'misjoinder of parties.' which means an excess of parties."

¶9 In the body of the opinion the court uses the following language:

"'Defect of parties,' under our statute is a ground for demurrer. 'Defect of parties' means too few and not too many parties, and hence is not synonymous with 'misjoinder of parties, which means an excess of parties. 31 Cyc. 294. Therefore the defect in the instant case was failure to join the drainage commissioner as defendant, without which plaintiff could not prosecute her action."

¶10 In case of Atchison, T. & S. F. Ry. Co. v. Hucklebridge, from the Supreme Court of Kansas, handed down March 9, 1901, 62 Kan. 506, 64 P. p. 58, second paragraph of the syllabus is as follows:

"Civ. Code, § 91, which requires defects in petitions other than those which appear on their face, and other than those of jurisdiction and in statements of fact to be set up by answer, does not apply to a petition by a partner who conceals the fact of partnership, and wrongfully brings suit in his own name for an injury to the partnership property. In such case the defendant, if ignorant of the partnership until disclosed upon the trial, may then raise the objection without the amendment to his answer."

¶11 In the body of the opinion the court uses the following language:

"It would appear from the record that the fact of Nichols' partnership relation was not known

...