Weise ex rel. Walker v. Gerner

Fagg, Judge,

delivered the opinion of the court.

This suit was commenced in the Platte Circuit Court, where there was a verdict and judgment for the plaintiff. An appeal was taken to the Fifth District Court, where the judgment was reversed and the cause remanded. The case now comes to this court'upon a writ of error, prosecuted by the plaintiff below. If it were necessary to review the entire proceedings in the Circuit Court for the purpose of correcting all the errors manifest upon the face of the record, there would be no difficulty in pointing out many objections that ought not to be permitted to stand. That which goes to the root of the whole case, however, and is sufficient to defeat any recovery by the plaintiff, is all that need be considered. The petition discloses the fact that the suit was instituted to recover damages for a failure on the part of Gerner, the assignee of Weise, to comply with the covenants contained in a lease of certain property by the testator Hughes to Weise.

The answer of Gerner denies the right of the plaintiff tq bring the suit to the use of the executors of Hughes ; alleges the death of Weise, as Avell as the fact that the real parties in interest were not made parties plaintiff; and pleads to the merits of the action by averring a compliance in all respects with the terms and obligations of the lease. The question as to the proper parties to the suit was also raised by motion in arrest of judgment. The written lease which is alleged to have been transferred by assignment to the defendant Gerner is set out in full in the petition. The lessor, M. M. Hughes, deceased, executed the same for himself, and also as guardian for certain minors therein named, who were joint owners of the property with him. The petition does not show that the interest of these minors in the property in question had ever been extinguished. They must, therefore, be considered necessary parties in any suit growing out of this transaction. The provisions of the statute on this subject *530 are plain and simple. (Gen. Stat. 1865, chap. 161, § 2.) It is manifest upon the facts stated that if any cause of action had accrued against the defendant Gerner, it ought to have been brought in the names of the executors themselves, joined with such other persons as could be shown to have an interest directly in the recovery sought for. They alone are to be considered as the real parties in interest within the meaning of the statute, and the action should have been prosecuted in their names only.

Weise, having assigned the lease and thereby transferred his entire term to Gerner, had no interest in the matter such as to authorize him to institute this suit. There are no facts stated in the petition that would authorize a recovery in his own right against the defendant, and much less in his name to the use of the real parties in interest or any of them.

With the concurrence of Judge Wagner,

the judgment of the District Court will be affirmed and the cause remanded to the Circuit Court.