Moffet v. Wooldridge

3 Stew. 322

Opinion

By JUDGE PERRY.

In the ease of Smith & Hill v. Cobb,

a which was a suit instituted before a justice of the peace, against the maker and indorser of a promissory note, judgment was rendered against them, and they appealed. The appellate Court permitted a dismissal of the suit as to the indorser, and gavejudgment against the maker and his security. The Cour-. determined that the statute of 1819.b which enacts that appeals taken front the of justices of the peace, shall be tried by the appellate Court, accordicg to the justice and equity of the case, without regarding any defect in the warrant, capias or summons, or other proceedings of the justice, docs no cure a defect for the want of proper parties, or a misjoina der of parties. The statute having received this construetion, it is apparent from the facts in this case, that Thomas Wooldridge, Junior, in whose name the warrant issued, had no legal interest in the cause of action, consequently the action was impropeily commenced, and the name of Thomas Wooldridge. Senior, being Used in the warrant as the cestui que use, cannot cure the defect, for all actions must be brought in the name of the party whose legal rights are sought to be enforced in a court of justice. In this case, the drawer of the order, Thomas Wooldridge, Junior, having been made the plaintiff in the warrant, it was not competent for the appellate Court to permit Thomas Wooldridge, in whose favor the order was drawn, and for whose use the suit was brought, to be substituted as the plaintiff in legal interest, and to file a declaration in his own name, disregarding the name of the party who had been made plaintiff in the original process; if this could be done, parties to actions before justices of the peace, would never know who were or would be plaintiffs or defendants, until the cause should reach the appellate tribunal, consequently could neither prosecute or defend, because of the uncertainty as to who would be substituted upon the record. It cannot be possible that the legislature ever intended to give such latitude to the proceedings had before justices of the peace. It is however contended, that a demurrer could not reach the variance between the declaration and the warrant, or the cause of action indorsed thereon. This proposition we are not. willing to admit, for whenever it appears from the proceeedings in a cause, that an improper person has been made plaintiff, the defendant may demur. From the facts of this case, therefore, Thomas Wooldridge, Junior, was an improper plaintiff, he having no interest in the subject of controversy, as appears from the record. When it does not appear from the record who ate the proper parties, the want of 1hem can only be pleaded in abatement; and the right to demur, when the declaration does not pursue the writ, is recog-nised by this Court in the case of Sossamon v. Gamble,a by sustainingfor a variance between the writ and declaration; also, in the case of Lee v. Adkins,b the defendants demurred for a variance between the cause of action stated in the declaration, and that indorsed upon the writ, and for a variance between the writ and declaration. The decided against the demurrer, upon the ground that the party demurring, could not resort to the cause of action indorsed upon the writ, to shew the variance without craving oyer of the indorsement, clearly recognising the principle, that whenever a variance did occur, it was subject to demurrer. This Court is therefore of opinion, that the demurrer in this case was properly taken, and that the Court erred in overruling the same.

Judgment reversed.

1 Stewart's R. 62.

Laws of Ala page 189 sec. 22.

Minor’s Ala R. 4.

Minor’s Ala R. 187.