Marsh v. Dooley

The statute (Code of Civil Procedure, sec. 1493) must be construed to intend that if an opportunity was afforded one proper person to present the claim during the period of time allowed by law, that the claim should then be presented, or be barred as in any other case. Darling, in whom the legal title and possession of the note was vested during that time, had such opportunity, for he was here. He was a proper person to have presented the claim, because he was a proper party to have enforced it. (Price v. Dunlap, 5 Cal. 485 ; Gradwohl v. Harris, 29 Cal. 154; Wetmore v. San Francisco, 44 Cal. 300.) Indeed, Darling was the real party in interest, and the money was due and payable to him alone, whatever might have been the secret equities between him and the plaintiff. He was the only proper party to present or enforce the claim. (2 Parsons on Notes and Bills, (Ed. of 1865) 438-9 and 449-50; Zachary v. Gregory, 32 Tex. 452; Richards v. Better, 53 Ill. 467.)

This view is strengthened when we remember that the original note must be exhibited, if demanded, and the holder must bring suit upon it. (Code of Civil Procedure, secs. 1497-8.) Darling only could have complied with the statute in this respect, for being the owner of the legal title, he was entitled to its possession. The same rule is applied as to possession of land. (Estrada v. Murphy, 19 Cal. 272; Clarke v. Lockwood, 21 Cal. 222; Hartley v. Brown, 46 Cal. 203, and cases cited.)

“ To allow one not a party to a note to recover it, or the value of it, from the payee would be an anomaly in law.” (Fulton v. Fulton, 48 Barb. 589.)

Black & Stephens, for the Respondent.

Wherever there is a Code, and especially in this State, actions [234]must be prosecuted in the name of the real party in interest as distinguished from the formal or nominal party in interest, with but one exception, hereafter noted. ( Wiggins v. McDonald., 18 Cal. 126 ; Wedderspoon v. Rogers, 32 Ibid. 569 ; Poorman v. Mills, 35 Ibid. 118; Wallace v. Eaton, 5 How. Pr. 99; Lyon v. Berham, 20 How. 150.)

The exception above mentioned is found in sec. 369 Code Civil Procedure, which could only be applicable by considering Darling the trustee of an express trust. If he were such trustee then he might sue with or without joining plaintiff, or she could bring the action herself; but he is not such trustee, because no trust to him as trustee for respondent as cestui que trust is expressed upon the face or by the terms of the contract, [*. e., the note] or in any manner with Darling, or in his name, for plaintiff’s benefit, as required by said section to constitute such a trustee. (See, further, Story on Eq. sec. 980; 34 Cal. 136 ; 32 Cal. 116 ; 15 Cal. 344.)