Bolivar Compress Co. v. Mallett

Mississippi Supreme Court

Bolivar Compress Co. v. Mallett

104 So. 79, 139 Miss. 213, 1925 Miss. LEXIS 134

CourtMississippi Supreme Court

DecidedMay 11, 1925

DocketNo. 24960.

StatusPublished

Cited by4 cases

This text of 104 So. 79 (Bolivar Compress Co. v. Mallett) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bolivar Compress Co. v. Mallett, 104 So. 79, 139 Miss. 213, 1925 Miss. LEXIS 134 (Mich. 1925).

Pincite

Opinion

Anderson, J.,

delivered the opinion of the court.

Appellee, J. L. Mallett, recovered a judgment in the Second district of the circuit court of Bolivar county against appellants Bolivar Compress Company and others, from -which judgment appellants prosecute this appeal.

The action was for a conversion by appellants of certain cotton on, which Mrs. Susie Wheatley had a landlord’s lien for unpaid rent. The appellee brought the action in the name of Mrs. Susie Wheatley. It developed on the trial that Mrs. Wheatley before the action was brought had transferred and assigned in writing to appellee her entire interest in the claim which was the basis of the action, and that therefore she had no interest in the cause of action. Thereupon appellee by leave of the court was substituted, over the objection of appellants, as plaintiff in the place of Mrs. Wheatley. The action of the court in permitting that amendment is the only question argued on behalf of appellants.

If there was ever any doubt as to the propriety of such an amendment, we are of opinion that such doubt has been removed by chapter 134, Laws of 1916, Hemingway’s Code, section.497, which provides, among other things, that in case of the transfer or assignment of any interest in a “chose in action before or after suit 'brought, the action may be begun, prosecuted and continued in the name of the original party, or the court may allow the person to whom the transfer or assignment of such interest has been made, upon his application therefor, to be substituted as a party plaintiff in said action.” (Italics ours.) It will be noted that the statute used the language “any interest in such an action.” Any interest in a chose in action embraces all as well as any fractional part thereof. 3 C. J., p. 232, section 4 et seq., and notes. As it appears to the court, to so construe the statute not only conforms to its language, but makes the statute *220 serve a wise and just purpose. The present case is an illustration: We have here the real party in interest bringing the action in the name of his assignor who has no interest whatever in the cause of action. The court has jurisdiction of the cause and of the defendants.; and the plaintiff, although not before the court in name, is prosecuting the action through his attorneys; that will bo presumed at least, for he alone is interested in its prosecution. Under those conditions, what possible harm was done the defendants by the substitution of the real party plaintiff in the place of one who had no interest? We are unable to see any. On the other hand, if the cause had been dismissed on the ground that the proper plaintiff was not before the court, unnecessary delay and expense would have resulted.

We deem it useless to review the cases decided by this court before the adoption of chapter 134, Laws of 1916, cited and relied on by appellants.

Affirmed.

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Anderson, J.,

delivered the opinion of the court.

Appellee, J. L. Mallett, recovered a judgment in the Second district of the circuit court of Bolivar county against appellants Bolivar Compress Company and others, from -which judgment appellants prosecute this appeal.

The action was for a conversion by appellants of certain cotton on, which Mrs. Susie Wheatley had a landlord’s lien for unpaid rent. The appellee brought the action in the name of Mrs. Susie Wheatley. It developed on the trial that Mrs. Wheatley before the action was brought had transferred and assigned in writing to appellee her entire interest in the claim which was the basis of the action, and that therefore she had no interest in the cause of action. Thereupon appellee by leave of the court was substituted, over the objection of appellants, as plaintiff in the place of Mrs. Wheatley. The action of the court in permitting that amendment is the only question argued on behalf of appellants.

If there was ever any doubt as to the propriety of such an amendment, we are of opinion that such doubt has been removed by chapter 134, Laws of 1916, Hemingway’s Code, section.497, which provides, among other things, that in case of the transfer or assignment of any interest in a “chose in action before or after suit 'brought, the action may be begun, prosecuted and continued in the name of the original party, or the court may allow the person to whom the transfer or assignment of such interest has been made, upon his application therefor, to be substituted as a party plaintiff in said action.” (Italics ours.) It will be noted that the statute used the language “any interest in such an action.” Any interest in a chose in action embraces all as well as any fractional part thereof. 3 C. J., p. 232, section 4 et seq., and notes. As it appears to the court, to so construe the statute not only conforms to its language, but makes the statute *220 serve a wise and just purpose. The present case is an illustration: We have here the real party in interest bringing the action in the name of his assignor who has no interest whatever in the cause of action. The court has jurisdiction of the cause and of the defendants.; and the plaintiff, although not before the court in name, is prosecuting the action through his attorneys; that will bo presumed at least, for he alone is interested in its prosecution. Under those conditions, what possible harm was done the defendants by the substitution of the real party plaintiff in the place of one who had no interest? We are unable to see any. On the other hand, if the cause had been dismissed on the ground that the proper plaintiff was not before the court, unnecessary delay and expense would have resulted.

We deem it useless to review the cases decided by this court before the adoption of chapter 134, Laws of 1916, cited and relied on by appellants.

Affirmed.

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Bluebook (online)

104 So. 79, 139 Miss. 213, 1925 Miss. LEXIS 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bolivar-compress-co-v-mallett-miss-1925.

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