Wilson v. Benedict

1. Practice: parties. In an action at law a party cannot be both plaintiff and defendant. 2, -: idem sonans. The rule that, from identity of name identity of person may be presumed, cannot be extended so far as to sustain the inference that the same name appearing as plaintiff and defendant in an action represents one and the same person. 3.--: action at law : judgment. A judgment in an action at law, pure and simple, which undertakes to adjust the equities of the creditors of the judgment debtor by postponing the payment of the'judgment to their claims, is erroneous.

Error to Jaclcson Circuit Court. — Hon. Turner A. GrILL, Judge. (1) The finding and judgment of a court should be responsive to the issues made by the pleadings ; and in an action at law, equitable relief cannot be granted. The citation of authorities to support these two propositions would seem to be unnecessary. Holden «. Vaughan, 64 Mo. 590. The interposition of an . equitable defence would not convert an action at law into a proceeding in equity. Wolff v. Schaeffer, 4 Mo, App. 367. In the case at bar it will not be contended, however, that an equitable defence was ever • interposed.-(2) In the case at bar the action was one of' debt only against the defendants, Benedict, Melone & Company, and the sole issue was whether they were liable on account of having accepted the bills sued on, and it was for the purpose of defending this very issue that the receiver and several of the creditors were made parties' on theil-' own motion. The mere'fact of the receiver’s presence as a party defendant did not, in any wise, change the plaintiff’s attitude in the case, nor the plain, simple Issue of debt made by the pleadings. (3) If, however, the pleadings had been so framed as to have required the court to exercise its chancery powers in adjusting the equities, if any, between the plaintiff’s assignor and the defunct firm of Benedict, Melone & Company, then it would! have devolved on the court, when so in possession of the parties and the matter in controversy, to have adjusted all the rights and equities of the parties, in order to have administered full and complete relief. This point is well settled by the authorities. Keeton v. Spradling, 18 Mo. 321; Corby o. Bean, 44 Mo. 379. (4) The action of the lower court in tacking on to the judgment, in plaintiff’s favor, the clause postponing its payment until the demands of all other creditors of Benedict, Melone & Company were first paid out of their assets, in the receiver’s hands, was clearly unauthorized by the pleadings, was repugnant to said judgment, and otherwise, without warrant of law. (5) Neither the defendant, Stewart, nor any of the defendant creditors, can be heard to question the finding of the lower court in plaintiff’s favor as to the acceptances. If they had desired to do so, they should have had the lower court pass upon their objections and then prosecuted their appeal or writ of error. Boyse v. Burt, 34 Mo. 74 ; Long Story, 13 Mo. 4 ; Cornelitcs v. Grant, 8 Mo. 59; Bevin v. Powell, 83 Mo. 365. (6) The writ of error in this case has been prosecuted for the purpose of having an adjudication by the court upon the question whether the judgment appealed from should be modified and corrected, so as to be consistent with the issues made by the pleadings and sustained by the proofs in the case, and not for the purpose of reversing and modifying such judgment, in so far as it determines the issue of debt submitted by the pleadings. As to the power of the appellate court to correct such errors, on a writ of , error, or even in case of an appeal in the nature of a writ of error, there seems to be no question, and, in fact, we do not understand that the respondents contend that it cannot be done in a proper case. Harbor v. Railroad, 32 Mo. 423. An error in the court in rendering judgment can only be corrected by appeal or writ of error. Smith v. Best, 42 Mo. 185 ; Lewis v. Railroad, 59 Mo. 495; Downing v. Still, Admúr, 43 Mo. 309, 318. (1) The members of one partnership cannot at law ■sue another partnership where one member of the firm .suing is a member of the firm sued. Portland Bank v. Hyde, 2 Fairfield [Me.] 196 ; Blasdell v. Ladd, 14 N. H.' 129; Livingston v. Livingston, 2 Mills [S. C. Const.] 428; Calvit v. Markham, 3 How. [Miss.] 343 ; Rogers v. Rogers, 5 Iredell Eq. 31; Chapman v. Evans, 44 Miss.' 113. (2) The firm of Melone, Epperson & Shepherd, not being able to sue at law, their assignee could not do ¡so, he having no greater right than themselves. See the ■case of Portland Bank v. Hyde, 2 Fairfield [Me.] 196, where the question is fully discussed, and which is directly in point in this case. (3) An assignee does not and cannot possess any other or greater right than his assignor. Heinriek v. Wood, 7 Mo. App. 236; State to use v. Rowse, 49 Mo. 586. (4) The assignor could not come into court and sue himself, and his assignee cannot do it. The petition did not state a cause of action, and the point can be raised for the first time here. McLntire v. Melntire, 80 Mo. 470 ; Miller v. Davis, 50 Mo. 572; Bateson v. Clark, 37 Mo. 31; Sweet v. Maupin; 65 Mo. 65. (5) This was a case that no law court could have jurisdiction of, for the reason that it had no power to bring the parties into court and settle all of the rights of the partners and creditors of both firms; and if it could not do it, how could it render a judgment here, and, if it could not do that, then it had no jurisdiction of the cause itself; for if it could not afford just relief, then it ■could not claim the right to attempt it, and could, therefore, have no jurisdiction of the subject matter of the suit.