Robbins v. Wells

18 Abb. Pr. 191

Opinion

By the Court.

*—Robertson, J.

It appears by the case that only one action was tried, one set of pleadings before the court, and one complaint dismissed, and that was in the supplemental action brought by Mrs. Eobbins to enable her to succeed to whatever rights her husband had in the original action, and prosecute it to a conclusion. One of the grounds on which such dismissal was asked for was, the legal disability of Mrs. Eobbins to prosecute any action. Whatever testimony was admitted on such trial to sustain the original cause of- action was therefore immaterial, and may be dismissed from our consideration. The present plaintiff’s attorney appears from the complaint to have proceeded upon the erroneous view that the leave granted to file a supplemental complaint necessarily either absorbed the original action in the new one, or established the plaintiff’s right to sue, for the same cause of action. The present complaint, except that it alludes to the previous action, would be suitable for an entirely new one. In a supplemental complaint, where the original one alleges the facts on which the action is based, the reiteration of those facts is entirely unnecessary. What was in the original complaint (if any was filed) does not appear, as it is not before us. At all events, it is necessary to try both actions before it can be determined whether there was originally a causé of action.

Clearly, the determination, whether the party filing the supplemental bill was entitled to succeed to the rights of the original plaintiff, was necessary, before ascertaining whether there was any cause of action, and if she were not so entitled, the court would not undertake to pass upon the original issues in this cause, when the true successor to the plaintiff’s rights was not before them to maintain them.

Assuming, then, that the only action tried was the supplemental one, and the only issue in it to be the right of Mrs. Robbins to succeed to her husband’s position as plaintiff. I fully concur with the chief-justice in holding that the objection to her right to prosecute, by reason of deriving title under a foreign administration, was waived, as being the second cause of demurrer specified in section 144 of the Code, under section 148. Such objection goes wholly to the right to sue, and not that to receive or discharge the claim. (Doolittle a. Lewis, 7 Johns. Ch., 45; Robinson a. Crandall, 9 Wend., 425.) They may be sued in this State in their representative capacity for moneys collected by them, including such a claim, Campbell a. Tousey (7 Cow., 64), and they may assign their claims so as to give the assignee a right to sue.*

A voluntary payment by the defendants to the plaintiff would have discharged the latter as against all other claimants. The defendants may, therefore, choose to waive the objection as to the right to recover by the plaintiff, and put their defence on the merits. A payment by them after the action was terminated, whether voluntary or involuntary, would bar the action of any other person.

The mere leave to file the supplemental complaint decides nothing as to the plaintiff’s rights. The judgment that the plaintiff in it have leave to prosecute the original action, and succeed to all the.rights of the first plaintiff, is a different matter. Where the court can see on the face of the supplemental complaint that the former action is fatally defective, it may refuse such judgment. (Candler a. Pettit, 1 Paige, 168; Day a. Potter, 9 Ib., 645.)

I think the provision of the statute of 1853 (ch. 153), amending the statute of 1849, as to joint-stock companies (3 Rev. Stat., 5 ed., 777, 778, §§ 125, 827), is peremptory in requiring suits against partnerships consisting of more than seven members to be brought against the president or treasurer in order to determine their liability, and the remedy against their joint-property to be exhausted before an action can be brought against the individual associates.

The answer to the supplemental complaint shows that the defendants are members of such a joint-stock association, and, therefore, no action can be maintained against any one but the officers named in the statute. This may be considered as an objection arising under the first or fourth of the causes of demurrer, specified in section 144 of the Code. The court’ has no jurisdiction of the subject of the action, so as to make the defendants responsible, until after the recovery of judgment and issuing of execution against the officers of the association, and even if the defendants are at all proper parties to the present supplemental action, clearly the officers in question should be added, and in that respect there is a defect of parties.

The dismissal of the supplemental complaint was therefore proper, and should be affirmed, with costs.

On the character of the evidence on the merits I do not undertake to pass.

Present, Bosworth, Ch. J., Robertson and Barbour, JJ.

See Middlebrook a. Merchants' Bank, Ante, 109.