Croft v. Topp

4 Ala. 238

• Court: Supreme Court of Alabama
• Decided: June 15, 1842
• Status: Published

Opinion

COLLIER, C. J.

The action upon the exemplification should certainly be prosecuted in the name of the parties in whose favorthe decree was rendered; for.it is a debt due them as much as if the defendant had obliged himself to pay them eo nomine, a certain sum of money. It is well settled that the party in whom the legal right is vested, must ■ sue at law, and this although what may be recovered will go into the hands of another person. Thus in McLeod v. Mason, [5 Porter’s Rep. 223,] where one guardian had resigned and another been appointed in his stead, upon a settlement with the Orphans’ Court of the accounts of the former, it was held that the decree for wliat was ascertained to be due to the wards,should be in their favor, and not in favor of their guardian (the successor) as such. So in Sutherland v. Goff, [lb. 508,] it was determined where the matter lies in action, the suit must be in the name of the ward. [See also 6 Porter’s Rep. 9; 2 Ala. Rep. 406.] These cases are decisive to show that for the recovery of a debt due to infants, who are in wardship, the action must be sued in their name by their guardian, and not in the name of the guardian, although he may describe himself as such on the record. This being the law, it will follow, that to let in the exemplification as proof, the suit should have been brought in the name of the plaintiff’s wards, and not in his own name.

In determining the law to be otherwise, the Circuit Court erred — its judgment is consequently reversed and the cause remanded, if the defendant in error desire it.