Alexander v. Overton

72 N.W. 212, 52 Neb. 283, 1897 Neb. LEXIS 60

• Court: Nebraska Supreme Court
• Decided: September 22, 1897
• Docket: No. 8125
• Status: Published

Opinion

Norval, J.

This is the second appearance of this, cause'in this court. (Alexander v. Overton, 36 Neb., 503.) The action was brought under section 71, chapter 66, General Statutes, 1873, against the principal and sureties on the official bond of John Overton, as treasurer of Otoe county, to recover for the wrongful sale by him to plaintiff of certain real estate for taxes. The sole defense relied upon is that plaintiff is not the real party in interest. On the last as well as the first trial in the court below this issue was determined in favor of the defendants. On the former hearing in this court a reversal of the judgment was •entered for want of sufficient evidence to sustain the said defense. In the opinion then filed it was held that plaintiff could maintain it, since it was proven that the lands were purchased from defendant Overton at tax sale in the name of plaintiff with moneys purporting to belong to her. On the last trial it was likewise establisted by undisputed testimony that the lands in contro-. versy were purchased for plaintiff by her brother W. D. Merriam; that he paid the money for her on the several sales to the defendant Overton, and that the latter made the certificates and tax deeds to plaintiff. These facts justified the bringing of the suit in her name when the same was instituted, no assignment of the causes of action at or prior to that time having been shown.

John A. Rooney, an attorney at law, in the office of John O. Watson, counsel for defendant, testified on the second trial that on his return from a business trip east, at the request of Mr. Watson he called upon plaintiff at her home in Sigourney, Iowa, and had a conversation with her, in which she stated she was a sister of W. D. Merriam; that she was not interested in any suits pending in the district court of Otoe county under the title of Art Eliza Alexander against John Overton; and that she possessed no money of her own. This testimony was wholly insufficient to defeat the action, and is easily reconciled with the evidence adduced on behalf of the plaintiff. W. D. Merriam testified, and his testimony is uncontradicted, that he bought the lots at tax sale from Mr. Overton for plaintiff, Mrs. Alexander, with her money and in her name; that he had no interest in the purchases; and that in January, 1894, since the commencement of this action and prior to the said conversation which Mr. Rooney had with plaintiff, Mr. Merriam purchased all of his sister’s interest in this suit. The assignment was introduced in evidence, and is found in the bill of exceptions. While Mrs. Alexander did not in fact have any interest in the litigation at the time she conversed with Mr. Rooney, she was the real party in interest at the time the suit was brought. The assignment by plaintiff to Mr. • Merriam did not abate the action, but the latter, under section 45 of the Code, had the undoubted right to prosecute the suit to final termination in the name of the original plaintiff. (Magemau v. Bell, 18 Neb., 247; Temple v. Smith, 13 Neb., 513; Dodge v. Omaha & S. W. R. Co., 20 ; Howell v. Alma Milling Co., 36 Neb., 80.) Under tbe evidence tbe court should have directed a verdict for the plaintiff. The judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

Harrison, J., not sitting.