CHAPTER I.

PARTIES.

SECTION 1. IN WHOSE NAME ACTION TO BE PROSECUTED.1

(a) Real Party in Interest.

STEWART v. PRICE.

Supreme Court of Kansas. 1902.

64 Kansas, 191.

The opinion of the court was delivered by

GREENE, J.: The defendant in error, C. E. Price, commenced this action before a justice of the peace in Allen county against D. W. Stewart, doing business under the firm name of the People's Telephone Company, to recover on two causes of action. The first was on an account due from Stewart to himself. The second was on an account due from Stewart to Mrs. A. Thompson. The latter account was itemized, verified, and assigned in writing to Price. The assignment was regular and admitted. To this second cause of action the plaintiff in error answered that Price was not the

1 THE CODE PROVISIONS OF THE VARIOUS STATES UPON THIS SUBJECT ARE AS FOLLOWS:

Alaska. Carter's Ann. Codes, 1900; Code Civ. Pro.

"25. Every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in section twenty-seven; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract."'

"27. An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. A person with whom, or in whose name a contract is made for the benefit of another is a trustee of an express trust within the meaning of this section."

Arizona. Rev. Stat., 1901.

1299. Every action shall be prosecuted in the name of the real party in interest; Provided, An executor or administrator, or a trustee of an express trust or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is brought.

66

1300. A person with whom or in whose name a contract for the bene

owner of the account, and therefore not the real party in interest. There was no defense to the account; nor was there any claim that it had been assigned for the purpose of acquiring or giving the court jurisdiction over the defendant, when otherwise it could not have acquired such jurisdiction. The Thompson account was assigned to Price that he might join it with his own in an action he contemplated bringing against Stewart, and when collected he was to pay Mrs. Thompson the entire proceeds thereof.

fit of another is made, and the assignee of any chose in action is a trustee of an express trust, within the meaning of this section."

Arkansas. Kirby's Digest, 1904.

"§ 5999. Every action must be prosecuted in the name of the real party in interest, except as provided in sections 6001, 6002, and 6003." § 6002. An executor, administrator, guardian, trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or the state, or any officer thereof, or any person expressly authorized by the statute to do so, may bring an action without joining with him the person for whose benefit it is prosecuted."

California. Kerr's Codes, 1908, Code Civ. Pro.

$367. Same as § 5999 of the Arkansas statutes, supra.

§ 369. Same as § 27 of the Alaska statutes, supra.

Colorado. Rev. Stat., 1908, Code Civ. Pro.

§ 3. Every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in this act.'

§ 5. Same as § 27 of the Alaska statutes, supra, with one or two verbal variations.

Connecticut. Gen Stat., 1902.

"$620. An executor, administrator, or trustee of an express trust, may sue or be sued, without joining the persons represented by him and beneficially interested in the suit."

§ 4090. Same as § 367 of the California statutes, supra.

§ 4092.

Indiana,

251.

§ 252.

Same as § 27 of the Alaska statutes, supra.

Burn's Ann. Stat., 1908.

Same as § 25 of the Alaska statutes, supra.

Same as § 27 of the Alaska statutes, supra, adding, "It shall not be necessary to make an idiot or lunatic a joint party with his guardian or committee, except as may be required by statute."

Iowa. Code, 1897.

"§ 3459. Every action must be prosecuted in the name of the real party in interest, but an executor or administrator, a guardian, a trustee of an express trust, a party with whom or in whose name a contract is made for the benefit of another, or party expressly authorized by statute, may sue in his own name without joining with him the party for whose benefit the action is prosecuted.''

Kansas. Gen. Stat., 1909.

§ 5618. Same as § 25 of the Alaska statutes, supra.

§ 5620. An executor, administrator, guardian, trustee of an express trust, a person with whom or in whose name a contract is made for the

The only question presented for our consideration is whether Price could maintain this action in his own name on the second cause of action. Can the assignee of a verified itemized account, assigned in writing, where the assignment is regular and admitted, maintain an action thereon in his own name, when by a previous arrangement he had agreed to pay the proceeds collected to his assignor? Our code (section 26) provides, "Every action must be prosecuted in the name of the real party in interest except as otherwise provided in section 28." It is not contended by

benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted. Officers may sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way.'

Kentucky. Carroll's Codes, 1895.

18. Same as § 5999 of the Arkansas statutes, supra.

21. A personal representative, guardian, curator, committee of a person of unsound mind, trustee of an express trust, a person with whom or in whose name a contract is made for the benefit of another, a receiver appointed by a court, the assignee of a bankrupt, or a person expressly authorized by statute to do so, may bring an action without joining with him the person for whose benefit it is prosecuted."

Minnesota. § 4053.

Laws, 1905.

Same as $25 of the Alaska statutes, supra, adding a provision for suing as representatives of a class.

§ 4055. Same as § 27 of the Alaska statute, supra, adding the words "or guardian' after the word "administrator.''

Missouri. Ann. Stat., 1906.

$$ 540, 541. Same as §§ 25, 27 of the Alaska statutes, supra.

Montana. Rev. Codes, 1907.

§ 6477. Every action must be prosecuted in the name of the real party in interest, except that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A person with whom or in whose name, a contract is made for the benefit of another, is a trustee of an express trust, within the meaning of this section."'

Nebraska. Comp. Stat,, 1911.

§ 6598. Same as § 5999 of the Arkansas statutes, supra. Same as § 5620 of the Kansas statutes, supra.

§ 6601.

New Mexico. Comp. Laws, 1897.

§ 2685, sub-sec. 2.

§ 2685, sub-sec. 3.

Same as § 5999 of the Arkansas statutes, supra.
Same as § 27 of the Alaska statutes, supra.

Same as § 3 of the Colorado statutes, supra.
Same as § 27 of the Alaska statutes, supra.

Nevada. Comp. Laws, 1900.

§ 3099. § 3101.

New York. § 449.

Chase's Code, 1910, Code Civ. Pro.
Same as § 6477 of the Montana statutes, supra.

North Carolina. Revisal of 1905.

§ 400.

provisions.

Same as § 25 of the Alaska statutes, supra, adding certain other

§ 404. Same as § 27 of the Alaska statutes, supra.

either party that the case falls within any of the exceptions. It must therefore be considered solely with reference to the meaning of section 26. In examining this section it will be observed that it does not say that it is the person in whose name the right of action stands, or the person who holds the legal title thereof, that may prosecute the action, but that "every action must be prosecuted in the name of the real party in interest." If Price failed to recover against Stewart, he would not be liable to Mrs. Thompson. The loss would be wholly that of Mrs. Thompson. Is the real party in interest the person who is to be benefited or who sustains a loss by the result, or is it the person who holds the legal title to the thing in action? This

§ 6807. Same as $ 5999 of the Arkansas statutes, supra. Same as § 27 of the Alaska statutes, supra.

§ 6809.

Ohio.

Gen.

§ 11241.

Code, 1910.

Same as § 5999 of the Arkansas statute, supra, adding certain provisions as to suits by assignees.

§ 11244.

Same as § 5620 of the Kansas statutes, supra, omitting the last

clause as to official bonds.

Oklahoma.

§ 5558.

§ 5560.

Comp. Laws, 1909.

Same as 25 of the Alaska statutes, supra.
Same as § 5620 of the Kansas statutes, supra.

Oregon. Lord's Laws, 1910, Code Civ. Pro.

§§ 27, 29. Same as §§ 25, 27 of the Alaska statutes, supra.

South Carolina. Code of Laws, 1902, Code Civ. Pro.

§ 132.

provisions.

Same as § 25 of the Alaska statutes, supra, adding certain other

§ 134. Same as § 27 of the Alaska statutes, supra.

South Dakota. Rev. Codes, 1903.

$80. Same as § 25 of the Alaska statutes, supra, adding certain other provisions.

§ 82. Same as § 27 of the Alaska statutes, supra.

Utah.

Comp. Laws, 1907.

§ 2902. Same as § 6477 of the Montana statutes, supra.

Washington. Rem. & Bal. Codes, 1910.

$179. Same as § 3 of the Colorado statutes, supra.

§ 180. Substantially the same as § 27 of the Alaska statutes, supra, adding after the word "administrator," the words "or guardian of a minor or person of unsound mind.”

Wisconsin. Stat., 1898

$2605. Same as § 25 of the Alaska statutes, supra.

§ 2607. Substantially the same as § 27 of the Alaska statutes, supra.

Wyoming. Comp. Stat., 1910.

§ 4311. Same as § 5999 of the Arkansas statutes, supra, adding certain provisions as to suits by assignees.

§ 4313. Same as § 5620 of the Kansas statutes, supra, omitting the last clause as to official bonds.