Vimont v. Chi. & N. W. Ry. Co.

• Citation: 21 N.W. 9,64 Iowa 513
• Court: United States State Supreme Court of Iowa
• Decision Date: 21 October 1884
• Parties: VIMONT v. CHICAGO & N. W. RY. CO.

64 Iowa 513

21 N.W. 9

VIMONT

v.CHICAGO & N. W. RY. CO.

Supreme Court of Iowa.

Filed October 21, 1884.

Appeal from Polk circuit court.

The plaintiff, as assignee of one Johnson, brought this action to recover damages for a tort committed by the defendant. The latter moved the court to require Johnson to be made a party to the action. This motion was overruled, and the defendant appeals. The latter afterwards filed a motion to transfer the cause to the federal court. This motion was sustained, and the plaintiff appeals.Nourse & Kauffman, for plaintiff.

N. M. Hubbard and W. S. M. Clark, for defendant.

SEEVERS, J.

1. As to the defendant's appeal. The petition states that C. O. Johnson was a passenger on one of the defendant's trains, and because of the negligence of the defendant he was injured and entitled to recover damages therefor. The nature and extent of the injuries are stated, and that Johnson had assigned his claim and right of action to the plaintiff, wherefor judgment was asked. The defendant pleaded-- First, a general denial of the allegations of the petition; second, “that the assignment was colorable, collusive, and fraudulent, and made for the purpose of depriving defendant of its right to remove the cause to the federal court;” and, third, “that the assignment of the claim by Johnson, together with the assignment executed at the same time by Vimont, constitutes barratry, champerty, and maintenance, and is void for that reason.” The agreement executed by the plaintiff at the time the assignment was made is in these words:

“In consideration of the assignment to me by C. O. Johnson of his claim for damages against the Chicago & Northwestern Railway Company, resultingto him by reason of an injury received by him on or about the thirty-first day of August, 1881, on said railway, I hereby agree to dispose of the entire amount realized on said claim as follows: For my own compensation in and about the prosecution of said claim, and for the use of any advances of money I may make I am to retain thereof the sum of fifty dollars. I am also to retain all sums of money that I may advance in the prosecution of said claim. Next, I agree to pay out of the proceeds of said recovery the reasonable fee of the attorneys and agents employed to prosecute said claim, or such fee thereof as may be agreed upon, if an agreement for a specific amount shall be agreed upon. And the balance of said recovery I agree to pay to the said C. O. Johnson.

WM. H. VIMONT.”

The defendant also pleaded that the assignment was made and completed in Illinois, and that by the laws of that state the assignment is void, and that it is illegal and void under the laws of Iowa. The defendant moved the court to make an order requiring said Johnson to be made a party plaintiff, on the ground that no determination of the controversy could be made unless said Johnson was a party to the record. And, in support of the motion, the defendant introduced the deposition of the plaintiff showing the agreement taken back at the time of the assignment was as above set forth: “That the plaintiff paid said Johnson no money, and don't know him; that the assignment was procured by his attorneys, Nourse & Kauffman,--Mr. Nourse being his brother-in-law; that he had no knowledge of this claim prior to receiving information in regard to it from Nourse & Kauffman.”

2. Is an action for a tort assignable so as to vest in the assignee a right of action in his own name? In Weire v. City of Davenport, 11 Iowa, 49, it was held that a right of action for a tort could be sold and transferred at common law, and in Gray v. McCallister, 50 Iowa, 497, it was held that a claim for a personal tort, which dies with the party, could be sold or transferred like any other cause of action. See, also, Small v. Railroad Co. 50 Iowa, 338. We are not disposed to depart from the rule established in these cases, therefore the assignment in this case is valid under the law of this state. The laws of Illinois were not introduced in evidence in this case and are not, therefore, before us. In the absence of proof to the contrary it must be presumed that the laws of that state are the same as those of Iowa. This we have held in several cases.

3. The assignment of the claim vested the legal title thereto in the plaintiff. Being such owner, he legally is the real party in interest, and the statute requires that the action for the recovery of such claim must be brought in the name of the said party. Code, § 2543. But it is urged that the assignment is colorable, and does not vest the right to maintain this action in the plaintiff, because of the agreement made at the time of the assignment whereby he agreed to pay a portion of the amount recovered and realized to Johnson, the assignor. If the assignment vested the legal title to the claim in the plaintiff it would seem that, ordinarily, he, as such owner, should have the right to do what he pleased with it. Besides this we understand this identical question was made and determined in Knadler v. Sharp, 36 Iowa, 232, adversely to the defendant, and no adequate reasons having been adduced why that case should be overruled we therefore follow it. We may further remark that it was held in Small v. Railroad Co., before cited, that champerty and maintenance are not a defense to the action. We therefore are of the opinion the plaintiff can maintain this action.

4. It is said as it may be determined the assignment is colorable, fraudulent, and void, that a complete determination of this case cannot be made unless Johnson is made a party. Johnson filed a paper in response to the motion in which he disclaimed any interest in the prosecution of this action, and stated in substance that he did not own the claim, but that he had assignedit to the plaintiff. If it should be determined on the trial, that the defendant had not been negligent, such adjudication would be binding on Johnson, and the controversy would be finally ended; but, if the plaintiff should be defeated on the ground that he did not own the claim, or that the assignment was colorable and fraudulent, it may be that Johnson could maintain an action thereon. “The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a determination of the controversy between the parties before the court cannot be made without the presence of other parties the court must order them to be brought in.” Code, § 2551. The rights of others cannot be prejudiced by whatever determination is made between these parties. Those of Johnson certainly cannot be, but if they should, he would clearly be estopped from complaining. It is urged, however, that the defendant would be prejudiced if compelled to again litigate the questions involved with Johnson.

We do not think, conceding this to be so, that such prejudice would be of a legal character, for the reason that the statute does not seem to so contemplate. In actions at law, if the controversy can be determined, without prejudice to the rights of others, between the parties to the action, this, ordinarily, is all that can be required. The motion, therefore,...