Tully v. Herrin

1. Conitci of laws — Lex eobi — Assioemeni govebned by. — Wbero a party sues as sssxgnoe, tbe assignment under wliieb be claims, must conform with tbe law of tbe forum. 2. Parties to actions at law — Assignee oe oten account. — The assignee of an open account has no title, by our laws, to sue in his own name, except the debt has been assigned to him in writing, by the creditor. 8. Conflict oe laws — Parties to action — Syndic oe Louisiana. — A syndic of Louisiana cannot maintain a suit at law, in his own name, as syndic, in the courts of this state, on an open account due to his insolvents, and assigned to him undor the insolvent laws of Louisiana. 4. Attachment — Equitable owneb entitled to wbit — Legal ownebs must be in declakation. — Any equitable owner of a chose in action is as much entitled to tho writ of attachment, as he who combines both interests ; but in declaring upon the cause of action, ho must put upon the record, the party in whom is the legal title, 5. Circuit court — Practice—Oeeice oe a demurrer. — The office of a motion is to bring to the notice of the court, some matter or subject in tho progress of a eause> which cannot he reached by plea or demurrer. 6. Same — Practice—Oeeioe oe a demurrer_if the declaration does not contain a cause of action, or if it sets out a good title defectively, the mode of submitting the question to the court, is by demurrer, not by a motion to dismiss. 7. Amendments — Injunction oe the statute. — The injunction of the statute of amendments, is to reform the pleadings and proceedings, so as to bring the merits of the controversy fairly to trial. 8. Attachment bv equitable owner — Amendment oe declaration bv naming legal owner. — Where an action is begun by attachment, sued out by the equitable owner of a chose in action, and the declaration is erroneously filed in his name, it may be amended by putting upon the record, the party in whom is the legal title ; and this will not necessitate a change in the affidavit or bond. 9. Same — Case at bar. — T. was syndic of T. & Co., under the laws of Louisiana, and as such, held a chose in action, against H.; T. sued out an attachment in this state, against H., giving bond, and making affidavit in his own name, as syndic, etc., both affidavit and bond, reciting that the indebtedness was to T., syndic of T. & Co. The declaration in the suit was in the name of T., syndic, etc. Held: The declaration should have been in the name of T. & Co. Held; An amended declaration could be filed. Held: This would not necessitate a change of cither affidavit or bond.

Error to the circuit court of Rankin county. TaRbell, J. On 17th day of November, A. D. 1868, in the county of Rankin, plaintiff in error, as syndic of the insolvent firm of A. J. Tully & Co., doing business in New Orleans, La., sued out an attachment at law, founded upon a claim of said firm of A. J. Tully & Go. against defendant in error, for the sum of $1,806 91 due by open account. Affidavit was duly made by the agent of said H. Tully, syndic, and bond given in substantial pursuance of the statute. An attachment duly issued, which was executed by levying upon an iron safe of defendant, and by summoning various persons as garnishees. On 17th November, 1868, an alias attachment issued, ad-, dressed to the sheriff of Hinds county, which he duly levied on certain lands, as the property of defendant in erz’or, as appears by the return on said warrant of attachment. After the levy and return, the attorneys-at-law of plaintiff in error filed in the circuit court of Rankin county their declaration in assumpsit on the claim for which attachment had been sued out, and proceeded to take depositions in New Orleans. The insolvency of the firm of A. J. Tully & Go.-, and the appointment of plaintiff in error, as syndic, under the insolvent laws of Louisiana,, is shown by a duly certified copy of the record from Louisiana. At the February term, 1870, of Rankin circuit court, defendant In error moved the court to dismiss .the whole proceedings, on the ground that the suit" w&s brought in the name of H. Tully, as syndic' of Á. J. Tully, upon an open account not assigned or transferred to said H. Tully. This motion, after argument of counsel and due consideration by the court, was sustained, the cause dismissed at the cost of the attaching creditor, and the application to amend the proceedings refused. From this decision of the court sustaining said motion, H„ Tully,. the syndic aforesaid, brought the cause here by .writ of error, and for error assign'the following: 1st. The court erred in sustaining the motions made by det-fendantiii error to dismiss the cause. • 2d.' The court erréd'in dismissing this suit'on motion of defendant in error.' • 3d.' The court erred in -dismissing this .suit on motion of ■ defendant in error,, and refusing- plaintiff in error leave to amend: 4'th. The court erred in''réfusihg plaintiff hi error leave to amend, and dismissing the suit on -motión of defendant ha ' error. Three questions are presented; by this recordz 1st. Could the plaintiff in error maintain a suit at law, as syndic of A. J. .Tulley & Co., upon an open account due to them and assigned to him as syndic under the insolvent laws of Louisiana? 2d. If he could not, could the defect in the proceedings be taken advantage of by motion to dismiss, or did it require a plea or demurrer to present the question to the consideration of the court? 3d. Considering that no action could be maintained in the name of the syndic, and that a motion to dismiss was the proper mode of taking advantage of the defect, was not the plaintiff entitled to amend ? The first question is not entirely free from embarrassment. The decisions of the courts in this country are not uniform, and there seems to be a conflict between the decisions in America and the decisions of the English and Continental European courts. By the common law, no suit at law could be maintained in the name of an assignee of a chose in action, except the assignee of a bill of exchange or promissory note. A practice, however, grew up, of suing at law, in the name of the original payee, for the use of the assignee, who was the real owner and controlled the case. 1 Chitty’s PL, 15,16. This rule applies equally to assignments made by operation of law as well as voluntary assignments made by the party in all courts where the common law system of pleading prevails. To remedy the inconvenience resulting from the common law rule', the bankrupt and insolvent laws, in all the common law states, almost invariably contain an express legislative provision, authorizing assignees appointed under them to maintain actions in their own name upon contracts made with the bankrupt or insolvent. In this state a great change in the common law rule of pleading has been made by our statute law relative to suits by assignees of choses in action. The recognition in Rev. Code, 486, art. 5, of the right of the real owner to continue the suit after the death of the nominal plaintiff in like manner as if originally brought in the name of the usee, greatly modified the strict common law. rule, which continued a cumbrous form of pleading and proceeding when every reason had ceased for continuing the rule. But a still greater change in the common law rule was made by art. 42, ch. 61, Rev. Code, 485, giving assignees of dioses in action power to sue under certain circumstances. These modifications of the common law look to the subr stance, and not the form — to the thing, and not the name; and provide for the prosecution of suits in the name of the real, and not the nominal owner, and must materially change the mode of enforcing rights in courts of law in many cases where the rules were adopted in conformity to the strict rule of the common law, which originally denied validity to contracts for the sale or transfer of choses in action. The insolvency of A. J. Tully & Co., and the appointment of H. Tully as syndic, was made in Louisiana, and by authority of the laws of that state. It is well known that the common law distinction between legal and equitable remedies, does not prevail there, but that the transfer, by operation of law, to the syndic, under the proceedings in insolvency, rests in him — the property and right to sue for and recover all property, movable and immovable, which belonged to the insolvent. This action he maintains in his own name, or by representation he stands in place of the insolvent. The title to the property itself is vested in him by operation of law. But in the present case, the proceeding in insolvency in Louisiana was upon the voluntary application of the debtor, and the property may be truly said to have passed as well by voluntary assignment as by operation of law. In the English courts the doctrine is manifestly maintained, that foreign bankrupt or insolvent laws have universal operation, and that an assignment under such laws transfers the movable property of the bankrupt or insolvent,, in •■all other countries t© the same extent as a voluntary transfer made by the debtor, would transfer it, and then withdraw it from the process of the local foreign laws, by way of arrest, attachment or otherwise issued in favor of the foreign creditors in the country where the movable property is situated. Story on Conflict of Laws,§ 403; 1 EL Black. K., 691, 692, 3 ib., 402, 405; 4 T. K., 182,192 ; 2 Mass., 617. This whole 'question is very learnedly and. exhaustively discussed by Judge Story in the Conflict oi Laws, and while he admits that the American courts have not uniformly adopted the rule of the English and Continental courts, it is very evident that he favors that rule as founded upon principle and justice, as well as comity. He cites, approvingly, the case of Alison v. Carnival, 1 Crompt., Mees. & Kose., 396, in which it was held that if, by the law of the foreign country, the assignees or syndics of a foreign bankrupt may sue there, the same right to sue in England will be allowed by the comity of nations. In the American courts it is admitted that the general rule is, that personal property, including debts, can have no locality, but follows as to its disposition and transfer, the law of the domicile of the owner. But it is said every country may, by positive law, regulates, as it pleases, the disposition of personal property found within it, and may prefer its own attaching creditors to any foreign assignee, and no other ■country has a right to question the determination. Story on. Comil. of Laws, 416, Upon referring to the American eases, it will be seen that the point arising in them has been a stuggle for priority and preference between parties claiming against the bankrupt under opposing titles, the assignees claiming for the general creditors and the attaching creditors for their separate rights. Story Comfl. of Laws, 420. In most of the American cases in which assignments under foreign bankrupt laws have been denied to give a title against attaching creditors, it has been distinctly admitted that the assignee might maintain suits in our courts under such assignment for the property. Story on Confl. of Laws, § 420, and cases cited. ■ Judge Story further says, “ unless this admission can be overthrown, it surrenders the principle ; for no one will contend that the assignees can, either at law or equity, sue in our courts, unless they possess some title under the assignment.” It being conceded that a foreign assignee or syndic may sue in our courts to recover personal property generally, the question arises whether they can sue in their own name, in a court of law to recover choses in action. In England and; in this country,, the authorities seem to be contradictory some affirming, and others denying the right. In the cases of Wolfe v. Oxbalme, 6 Maulé & Sel., 99 ; Jeffrey v. Buck-taggort, 6 Maulé & Sel., it was held they could not. But in Smith v. Buchanan, 1 E.ast., 11, Lord Kenyon, etc., preferred a different opinion; and in Alison v. Furniss, 1 Cromp., Mees. & Rose., 277, Baron Porter maintained the right. In the American courts, the decisions are contradictory, though Judge Story says the weight of authority is against the right. Story on Conff. of Laws, 565. In the case of O’Callahan v. Hamond, 3 Taunton, 82, 84, it was held that the assignee of a judgment in Ireland, where such assignment vested a title at law, in the assignee, could maintain an action in law in England, because a legal title by the lex loci vested in him, and the case was not to be governed by the law of England as the assignment was in Ireland. Story on Conff. of Law., 566- It is conceded that the objection that an assignee of a chose in action cannot maintain an action upon it in his own name, is purely technical, and has been received in many cases by statute, and in some instances by the courts. Thus it has been said, if the debtor, after the assignment, promise to pay the debt to the assignee, he may maintain a suit on this promise and recover the contents of his choses in action. Being the real owner of the choses in action, and the real party in interest, is sufficient consideration to support an action upon an express promise to pay. It is difficult to con' ceive why, if the action could. be maintained'uponan express •promise, it would-apt lreVúpo'n'’ an' implied assumpsit., which the law raiseá in évery .case' where' one party has a right -.to demand, and it is the duty of another' to perform an obliga-' tioii. But if it.be conceded that by strict common law rules: this action could not be maintained, it is conceived that the' remedy by attachment has extended the jurisdiction of courts of law and gave authority To maintain this suit. The remedy by attachment is statutory. ■ It'gives ¿remedy where the common law gave none, and is by the very terms made applicable to t£ all demands founded upon any indebt-;. edness, or for the recovery of damages-for the breach of any contract, express or-implied.” Bey. Code,' 372, art'. Í., 'It-further provides that the a creditor shall make báth of the amount of his demand,” ,et,c. It'is also intended, and is to be construed “for the advancement of justice and the benefit of ■ 'creditors. ” Art. 14. Looking at this language, it'would seem impossible to resist the conclusion, that the remedy by attachment is applicable to the case at bar. The claim sued upon is a demand founded upon an indebtedness. It is for the recovery of damages founded upon a breach- of an implied contract, and the party who sued out the attachment is the creditor to whom the money is to be paid. He is the real owner of the claim, and the only person to whom payment could rightfully be made, or who could take the oath or give the bond required by the statute. By article 6, it is provided that, before issuing the attachment the officer “ shall take bond and surety from the plaintiff, his agent or attorney. ” Who was to give this bond ? Of course the party really owning the claim, the creditor to whom the money was to be paid; and unless the writ and bond could be taken out in his name, and he could make the affidavit, the remedy by attachment would be unavailable in this class of cases. 2d. But if mistaken in the above views, then the court erred in dismissing the proceedings by attachment, on motion. The only way of teaching the alleged defect, was by plea or demurrer, or on motion to exclude the evidence upon the bearing. In no case could the court, upon a mere motion, dismiss the .case, however irregular or deficient the pleading, if there was any state of the case in which the court could take jurisdiction of the suit, or the plaintiff could maintain the action. 3d. But in any case, the plaintiff was entitled to amend,' .and the court erred in refusing leave to amend. The syn-dic, H. Tulley, is the real .plaintiff; when collected, the money would go to him ; the suit is for him, and a payment to him would discharge the debt — a payment to any one else would not. A suit in the name of A. J. Tulley & Co., would have left the control and direction of the suit in H. Tully, the real party, who was responsible for costs, and an amendment of the proceedings to that effect would only have been in a formal or technical matter. If we couple Rev. Code, 508, art. 180, on the right to amend pleadings and proceedings in general, with Rev. Code, attachment law, art. 15, and add the provisions of art. 44, declaring how the attachment law shall be construed, the right to amend seems to be beyond dispute. Can a syndic of Louisiana, as su'ch, maintain a suit in our Mississippi courts, in his own name, for the recovery of money due by open account to the insolvents whose estate he represents? It is an adjudicated point, in this state, that a Louisiana syndic cannot sue in' our courts as syndic, Kirkland & Co. v. Lowe, Pattison & Co., 33 Miss., 423. The law which governs as to who shall be parties to a suit, is that of the forum. Story on Confl. of Laws, §565. The doctrine laid down in the Mississippi case, of Kirkland & Co. v. Lowe, Pattison & Co., is the same in Massachusetts and New York, and other states. Orr v. Amory, 11 Mass., 25; Raymond v. Johnson, 11 Johns., 488. The appointment of a syndic does not debar the insolvents from suing in their own names. Blane v. Drummond, 1 Brock., 62; Raymond v. Johnson, 11 Johns., 488. If this were an assignee in bankruptcy, suing under the law of the United States, the rule, we admit, would be different. But the suit at bar is by a syndic, appointed by the mere state laws of Louisiana. There are many other-authorities on this point, cited by Mr. Shelton, in his brief in the Kirkland case, to which we refer the court, should there be any doubt as to the correctness of the position we here assume. In the case at bar, after the motion to dismiss was properly sustained by the court below, plaintiff’s counsel asked leave to amend the declaration, which application was refused. The general statute on the subject of amendments, is not compulsory, but merely gives to the courts discretionary power ón the subject. £‘ The court shall have power and authority,” etc., etc. Rev. Code, 1857, p. 508, art. 180. Under this discretion, the court below refused the application to amend. There is no error in that. While we admit that, under the statute above cited, this court has the power to revise the action of the court below, yet we submit, that an inspection of the whole record, shows that the amendment ought not to have been allowed, and could not, in fact, have been made, if allowed. 1st. Let us see what is meant by an “ amendment.” The term, in the ordinary signification is defined by Mr. Webster to be “ a change for the better; correction; alteration.” Bouvier makes this legal definition: “ The correction, by allowance of the court, of an error committed in the progress of a cause.” 1 Bouvier’s Law Die., ,118. The definition of Burrill is as follows: “ To free from error or deficiency; to correct an error; to supply a deficiency ; the correction of an error committed in any process, pleading or proceeding at law or in equity.” 1 Burrill’s Law Die., 72. Our statute, above cited, limits the extent of amendments as to parties, to mere “ mistakes in the name of any party.’’ Revised Code, 508, art. 180. In- this case, there was no mistake in the name of H. Tully, in whose name ,the suit was brought. His name was correctly set forth in the proceedings, hence no amendment was allowable under' the statute.. Tlíe .actual mistake was this : that the attachment suit-.was ..commenced in the name, ■of a party having no legal'power to'sue, .. It was a total misconception on the part of the attaching creditor, , as to the person who should be plaintiff. And, after the fatal error, plaintiffs asked to amend by ahancioning their case as brought, by Creating a new suit by way of amendment, and leaving in court no trace of the cause as originally brought.' To .permit this, would- be ,an extension of.'the doctrine of amendment far beyond all the limits intended to be given by our statute. .