Woods v. De Figaniere

16 Abb. Pr. 1

Opinion

By the Court.

*—Bosworth, Ch. J.

A further consideration of -the subject-matter of this appeal, confirms the convictions formed on the argument before me at special term. In addition to the reasons there assigned for granting the order .appealed- from, the following seem to me to be pertinent and conclusive.

1. The Code declares that “ a party to an action may be examined as a witness, at the instance of the adverse party” (§ 390), and that this may be had at any time before the trial (§ 391).

What does the Code here mean by the words, “ a party to an-action” ? Clearly, it means any and every person, who, throughout its provisions, is described as a party to an action. A party to an action is one who is named as plaintiff or defendant, and appears on the record as such, and no other is meant.

The title “ Parties to Civil Actions” prescribes who may sue a.s plaintiffs and who may be sued as defendants.

By section 134, the summons is to be served on the defendant personally, except when served on a corporation, or a minor under the age of fourteen years, or the persons named in subdivision 3 of that section.

Pleadings, when verified, must be verified by the party, except in the case of a corporation, or where they are verified by an agent (Code, § 157), on a sufficient excuse being shown therefor.

The summons in this case was served on De Figaniere as a party to the action, and- the answer is verified by him as the defendant in the action.

All the provisions of the Code, as the general rule, when treating of parties to the action, mean only the parties to the record, whether nominal parties, or the actual parties in interest. And where a plaintiff or defendant is but a mere nominal party, and has no interest in the event, and his property cannot be touched by the judgment, he alone is included in the description of a party to the action; and -the person for whose immediate benefit the suit is prosecuted or defended is not included in the description.

Hence, the chapter entitled “ Examination of Parties” (§§ 389, 395), after providing for the examination of “ a party to an action,” the means of compelling it, and the penalties of refusing, declares that “ a person for whose immediate benefit the action is prosecuted or defended, though not a party to the action, may be examined as a witness, in the same manner and subject to the same rules of. examination as if he were named a party.”

This provision demonstrates that, in the intent and meaning of the Legislature, only those named on the record as plaintiffs or defendants, whether suing or sued in their own right or in a representative capacity, whether having an actual interest in the result or not, are parties to the action, and sections 389 and 395 are as applicable to one party as another. Whatevei rights one party has under these sections, every other party has; and whatever any one may be required to do, in- the matter of submitting to an examination, every other one may be required to do.

There are no provisions authorizing a discrimination in this regard between parties,—none are exempted from a liability to be examined as such. ,

De Figaniere is the only party defendant in this action. He is a nominal party, and is so named in the statute by force of which he is sued. (2 Rev. Stat., 5 ed., 777, § 124.)

He is as much a party as an executor, or any other party named in section 317 of the Code. They have no actual interest in the result, and their property cannot he touched on a judgment against them, not even for the costs of the action, unless charged with them personally for mismanagement or bad faith. (§ 317.) This defendant is described in that section by the words, “a person expressly authorized by statute” to prosecute or defend an action.

The joint-stock company is not a party to the action, it is not a legal entity, and as such can neither sue nor be sued. The individual- associates, as such, are not parties. The action is defended for the immediate benefit of the joint-stock company, but that is not a party, and cannot be made one. It has no capacity tb sue or be' sued, as such, and therefore cannot appear on the record as a party.

De Eiganiere is the nominal party defendant, and the only person named as a party defendant; and to claim immunity from the statute compelling a party to submit to be examined, must show that some parties, when nominal parties only, are exempt, and that he comes within the class of exempt parties.

This has not been shown. On the contrary, the Code includes all parties to the action, whether nominal or the actual parties in interest; and he is, therefore, liable to be examined the same as any other party.

2. The cause being, in fact, at issue, the notice to the defendant to appear and be examined was regular, and the giving of it entitled the plaintiff to the summons. Ho affidavit was requisite to authorize a judge to issue the summons. (Code, § 392; 3 Rev. Stat., 5 ed., 684, §§ 58, 59.)

3. It does appear that the original summons was shown to the defendant.

4. It also appears thát the defendant was paid, and accepted, fifty cents as his fees, and that he was served in Hew York city. And it further appears by the affidavit of Hr. Porter, that he, in behalf of the defendant, attended before the judge, and stated, as the reason why the defendant did not appear and submit to an examination, “that De Figaniere was not a defendant nor a party, but that the association was the party defendant, and not said De Figaniere. Consequently, the defendant did not appear, and that deponent made this statement to the court, that the court might see no disrespect was intended to the court.”

Under such circumstances, the fact that possibly De Figaniere was entitled to mileage, cannot be made available unless it affirmatively appears that he was; and even then, it is doubtful whether he did' not waive it.

The fact that the order does not declare that it was adjudged that the alleged misconduct was calculated to, and did impair, defeat, impede, and prejudice the rights or remedies of the plaintiff, is immaterial in this case.

By thé Code (§ 394), “Ha party- refuse to attend and testify, ... he may be punished as for a contempt, . . . and his answer be stricken out.” The order states that it was found as a fact, that he did not appear to testify, &e.

The statute under which the decisions in 9 Paige, 372, and 1 Duer, 512, were made, renders it indispensable to a valid conviction that it be found that the misconduct “ was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of” the party complaining of such misconduct. (3 Rev. Stat., 5 ed., 849, § 1; 852, § 20.)

In a proceeding under section 394 of the Code, it cannot be necessary that the order of conviction should require the finding of more facts than under that section need be established to justify the imposition of the fine, or the striking out of the defendant’s answer.

The order appealed from should be affirmed.

Present, Bosworth, Ch. J., Moncrief and Robertsoh, JJ.