West v. Bank of Lahoma

1906 OK 29, 86 P. 59, 16 Okla. 508, 1906 Okla. LEXIS 89

• Court: Supreme Court of Oklahoma
• Decided: February 15, 1906
• Status: Published

Opinion

Opinion of the court by

Gillette, J.:

It will be observed from the foregoing statement that no cause of action is stated in favor of the plaintiff and against the defendant, nor is a judgment sought that directly inures to the benefit of the plaintiff, the plaintiff's allegation being that if judgment is obtained against the defendant for the use and benefit of the Citizens Bank of Enid, such bank would not demand from the estate that plaintiff represents the sum of money that it is now demanding. That the plaintiff has examined into the facts and decided that it is to the interest of the estate he represents to bring this action, and that he has demanded of the defendant that the amounts sued for be paid, which in the first cause of action amounts to $501.90. Nine other causes of action for that many different beneficiaries are set forth in the petition, each setting forth the samo allegations as to the right of plaintiffs to sue, and the liability of defendant, the total judgment prayed for being $1,037.90.

We do not understand that because a person fears a demand against himself in case another person fails to pay an honest debt that he may thereupon- take it upon himself to-litigate the rights of such other parties, although he may be satisfied as to such right, and believe that he is saving by so doing.

This action is brought under the 'Oklahoma code of civil procedure, which provides (Wil. Ann. Stat. sec. 4224) : “Every action must be brought in the name of the real party in interest, except as otherwise provided in-section 28.” Sec. 28 being running section 4226, which provides: “An executor, administrator, guardian or trustee of an express trust may bring an action without joining with him the person for whose benefit it is prosecuted.”

This action is not brought in the name of the real party-in interest, and while the plaintiff may ’be said to be the trustee of an express trust, and for that reason under the terms of the statute it was not necessary to join with him the person for whose benefit the action was brought, we take it that before he could bring such action at all he would have to show by his petition that any judgment recovered would be the property of the trust estate when recovered, instead of a' judgment for the benefit of a third person, which in the opinion of the trustee would ultimately redound to the benefit of the estate.

If at the beginning-of this action there were funds of the bankrupt in the Bank of Lahoma which the bankrupt had a right to for any purpose, the plaintiff as trustee by virtue of bis office became entitled to the possession of the same for the use and benefit of the estate. The plaintiff as trustee could rightfully sue to recover the same only for the use and benefit of the estate, leaving the bankruptcy court to determine whether or not the Citizens Bank of Enid and the other persons for whose benefit the suit was brought, were entitled to preferred claims. It was not the province of the trustee to determine for himself that certain creditors of the bankrupt were entitled to preferred claims out of particular assets, and then sue to recover such assets for the use and benefit of such creditors.

The trustee has no judicial authority and where such is needed he must resort to the court as the bankrupt would have been compelled to do had no proceedings been instituted.

The powers of the trustee arise wholly out of the bankruptcy act of 1898 and amendments thereto, and we are unable to find any provision of that act which authorizes a trustee in bankruptcy to bring an action for any use other than the direct benefit of the estate, to be thereafter distributed according to the judgment and decree of the bankruptcy court.

If the bankrupt Kasper Streich at the time of his bankruptcy had any title to funds or credits in the Bank of Laho-ma, the title to the same passed to the plaintiff upon his appointment as trustee of such bankrupt estate, and the plaintiff might sue for and recover the same for the general use and benefit of the estate which he represented. If he had no title to such funds or credits, but title to the same had rightfully passed to some third person, the plaintiff could not bring the action for the use and benefit of such third person, for he was the real party in interest, and the plaintiff was not a trastee of his estate, or an officer authorized to act for his use and benefit.

It follows from these conclusions that this aetion in this form could not rightfully be maintained, and the demurrer was properly sustained.

Judgment of the lower court must be affirmed with costs;

Irwin, J., who presided in the court below, not sitting, all the other Justices concurring.