Howard v. Taylor — 11 How. Pr. 380

Majority

p. 380

SUPERIOR COURT.

J. H. Howard and Chas. Brown agt. Taylor.

Headnote

When, pendente lite, in an action on contract, the plaintiffs sell and assign the subject matter of the action to a third person, he will not be substituted as plaintiff, on motion of the plaintiffs to the record, and without notice to him. The alleged purchaser is the person to move for substitution; and he should do so, on notice to the plaintiffs, as well as to the defendant. Even in such a case, it is not a matter of course, to order a substitution, without imposing any conditions.

At Chambers,

Oct. 6, 1855.

On an affidavit of C. Brown, that this action is on contract, to recover $314, is at issue, that plaintiffs have assigned their interest-in the subject matter of the action to John C. Brown, and. that the affiant, C. Brown, is desirous the latter should be substituted as plaintiff in this action; the plaintiffs, on a notice from their attorney to the defendant, and to him only, move for an order making such substitution. This is opposed, on the ground that the pretended purchaser is the proper party to make the motion.

M. K. Burke, for plaintiffs.

H. W. Johnson, for defendant.

This motion is made under § 121 of the Code. No notice of it has been given to John C. Brown, and the motion is not made by him, nor on his behalf. He has not had a chance to be heard. He may deny that he has bought the right of action. If the motion was granted, a third person might be made plaintiff in the action, not only without his knowledge, but against his will. If he claims to have purchased the subject matter of the action, he should move to be substituted, if he wishes to be made plaintiff upon the record, and should move on notice to the plaintiffs as well as to the defendants.

But if he should move for such a substitution, and it should be apparent that the main motive for the change was the present plaintiff’s witnesses, the court might impose, as a condition, that he stipulate not to call them as witnesses. (6 Howard, Pr. R. 220.)

In the case of such a change of interests, pendente lite, it is discretionary with the court to allow, or refuse to allow, a substitution of the purchaser as plaintiff. Where a substitution cannot prejudice any right or remedy of the defendant, it would be almost a matter’of course to permit it. When such a result would be produced by the change, the court would either refuse to permit it, or would grant it only on such terms as would protect the defendant from injury.