Sayres v. Whitehead, Eggleston & Co.

3 Ky. Op. 387, 1869 Ky. LEXIS 442

• Court: Court of Appeals of Kentucky
• Decided: February 10, 1869
• Status: Published

Opinion

Opinion of the Court by

Judge Peters:

This action, as the caption shows, is brought in the name of J. L .Eggleston, N. R. Whitehead and E. W. Sherom, late partners as Whitehead & Eggleston, for benefit of Joe Simonton & Co., against appellant. Simonton & Co. are not made plaintiffs^ either in the caption or body of the petition, but the caption shows that they are the persons beneficially interested as plaintiffs, and the bill of particulars filed with the petition, and made part of it, shows that the debt was contracted with Simonton & Co.

The 30th section of Civil Code provides every action must be prosecuted in the name of the real party in interest, except as provided for in section 33rd. And this case is not embraced within the exception.

This requisition of the Code is not a mere form, but is of substance. The recitation in the caption of the petition that the action .was for the use of Simonton & Co., did not make them a party to the action, and was insufficient. Lytle vs. Lytle, 2 Met., 127.

Carlisle, for appellant. Drane, for appellees.

Nor was it a clerical misprision, but a failure to make the real parties in interest plaintiffs, and there is no analogy between this case, and Oldham vs. Brannen, 2 Met., 302.

Wherefore, the judgment is reversed, and the cause remanded for further proceedings not inconsistent herewith.