APPEAL from the Circuit Court for the Southern District of Ohio.
The case was this: The code of civil procedure of Ohio provides that every action must be prosecuted 'in the name of the real party in interest,' &c.; and 'that the distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and in their place there shall be, hereafter, but one form of action, which shall be called a civil action.'
With this provision of the code in force, the Central Ohio and another railroad company agreed to transport over their road, for one Thompson, a quantity of horses and mules, stipulating for payment in a certain mode, to which Thompson assented. In conformity with this agreement (the service having been performed), drafts were drawn on Thompson, which he neglected or refused to pay. These drafts, for convenience of collection, were drawn payable to the order of a certain D. Robinson, cashier; Robinson having, however, no interest in the proceeds. To e force the collection, what is termed as above mentioned, by the code in Ohio, a civil action, was instituted in one of the courts of the State, against Thompson, in the name of the railroad companies. The petition (used in lieu of a declaration), stated the original indebtedness from Thompson for freight, the giving of the drafts, their protest for non-acceptance or non-payment, and after averring that the plaintiffs were compelled to take them up, asked for judgment against the defendant for principal and interest. Thompson being a citizen of Kentucky removed the cause to the Federal court. When it reached there, by leave of the court, a bill in equity (setting up the same cause of action) was substituted for the petition originally filed in the State court, and the suit went on as a cause in chancery. The Circuit Court rendered a decree in favor of the complainants for the amount of the drafts, with interest. From this decree the defendants appealed, assigning as the chief ground of error that the complainants had a plain and adequate remedy at law, which they had in fact pursued in the State court, and which they ought to have followed out in the Federal court.
Messrs. Carlisle and McPherson, for the appellants, and in support of that view.
Mr. H. H. Hunter, contra, for the Railroad Companies, appellees:
1. Where a case is supposed to be not cognizable in a court of equity, the objection should be interposed in the first instance. After the suit has been regularly heard below upon its merits, the objection comes too late.
2. But had the complainant adequate and plain remedy at law? The case was commenced in the State court, and from a legal necessity, in the names of the complainants as plaintiffs. They were 'the real parties in interest' in the drafts, and they were exclusively interested in them. Being thus, necessarily, the plaintiffs in the case in the State court, they also, from legal necessity, remained plaintiffs in the Circuit Court after the removal of the case.
It is incontrovertible that the legal title of the drafts was in the payee, Robinson, and equally certain that the complainants were the equitable owners of them. Hence no action at law could be sustained on them in the names of the complainants, but only in the name of Robinson. By the practice of courts in general, the complainants, being the equitable owners, had the right to sue, at law, in the name of Robinson. But, by the Ohio code such mode of suit is expressly forbidden.
The cause of action on which the relief is prayed are the drafts specifically. To enforce the collection of them, the suit or civil action was originally brought. The suit is not on the contract, which, though referred to, is referred to only as an inducement and to disclose the equity of the complainants to the drafts.
Mr. Justice DAVIS delivered the opinion of the court.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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