More v. Massini

By the Court, Shafter, J.: The complaint is in two counts. The first count is for damages caused by a trespass upon land prior to a conveyance thereof to the plaintiff. The plaintiff claims the damages by assignment. In the second count the plaintiff alleges that he is the owner of the lands, and that they are in his possession ; that the defendants threaten to enter thereon, and to quarry and remove asphaltum therefrom, and that they will do so unless restrained. Wherefore an injunction is prayed, etc.

The complaint was demurred to on the ground that neither count stated a cause of action, and that there was a misjoinder of causes.

First—The sufficiency of the first count is disputed upon the ground that the damages claimed therein are not assignable.

It is insisted that the point is covered by Oliver v. Walsh, 6 Cal. 456, and that after twelve years acquiescence the doctrine of that case ought not to be re-opened to controversy.

It is true that the question presented in the case at bar is identical with that presented in the case cited; but the grounds of judgment now are not identical with those on foot in 1856, when the case cited was decided. The decision was made under the fourth section of the Practice Act, as amended in 1855. (Acts 1855, pp. 30, 31.) The original section, passed in 1851 (Acts 1851, p. 51, Sec. 4), was as follows: “Every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in this Act.” By the amendment of 1855, it was provided that “every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in this Act; but in suits brought by the assignee of an account, unliquidated demand or thing in action not arising out of contract, assigned subsequently to the 1st day of July, 1854, the assignor shall not be a witness in behalf of the plaintiff.” The decision in Oliver v. Walsh proceeded upon a construction of this amendment. It is unnecessary for us to express any opinion as to [593]the validity of that construction, for the amendment of 1855 has been entirely superseded by subsequent legislation. There is now no distinction between persons who are competent to bring actions and persons competent to testify in them when brought. But what is perhaps more to the purpose, the Legislature, by an Act approved January 27th, 1864, took up the fourth section of the Practice Act and re-enacted it in terms as passed in 1851, with the amendments of 1854 and 1855 left out. The question to be considered, then, is, whether a claim for damages to real estate can be assigned under the fourth section of the Practice Act as it now stands.