Stringfield v. Graff

22 Iowa 438

• Court: Supreme Court of Iowa
• Decided: July 1, 1867
• Status: Published

Opinion

Dillon, J.

1. Parties: attorney, when proper party. I. This is, upon the assumption of the truth of the averments of the petition, a plain case. The demurrer admits, of course, the case as stated. ™ . , , Crrail, being charged m the petition with fraudulent representations injurious to plaintiff, and with having in his hands moneys which should be applied, and which he agreed to apply, upon the judgment, and which he (Graff) claims the right to retain, he is most obviously a proper party to a bill seeking an account and a cancellation of the judgment.

Besides, the receipts are executed by Graff in his own name, and in some of them he agrees to make the collections and to apply the proceeds to the judgment in question. The facts averred in the petition and referred to in the statement of the case, distinguish it from Lyon v. Tevis (8 Iowa, 79).

2. __ principal and surety. II. Is Ooberly a necessary party plaintiff? "We think not. Defendants received the collaterals from the plaintiff alone, although it is true that plaintiff had, q,efore that time, received them from Ooberly. The receipts for them were made to the plaintiff alone. So far as the plaintiff seeks to have the judgment satisfied, and the proceeds of the collaterals applied for that purpose, he may plainly maintain this bill in his own name. He can do this by virtue of the above facts and of his relation as surety. Whether he can have relief beyond that which is above mentioned, we need not now determine.

Ooberly would undoubtedly be a proper party plaintiff, but he is not a necessary party. See Bice v. Smery at present term.

The judgment of the District Court is affirmed, and the cause remanded for further proceedings.

Affirmed.