Royal Insurance Co. v. Miller, 199 U.
S. 353, followed to effect that, in the absence of
express legislation affecting Porto Rico, the law prior to the
extension of the Civil Code thereto in 1889 concerning limitations
of personal actions is that generally prevailing under Spanish law,
and in these cases on insurance policies, the loss under which had
occurred prior to 1889, the twenty-year term applied and not the
fifteen-year term applicable under the Civil Code after its
extension to Porto Rico. A party having no legal interest in
maintaining or reversing a judgment is not always a necessary party
to writ of error or appeal, and if the defendant has pleaded below
that a party plaintiff has no interest in the cause of action,
having assigned the same, and as a result of such plea the assignee
has been substituted, the defendant cannot assert in this Court
that the original plaintiff was more than a nominal party, and the
writ will not be dismissed on account of his death and failure to
give notice to his succession.
Page 201 U. S. 195
Objections as to forms of writ of error not taken below will not
be entertained here to defeat the jurisdiction of this Court, and
an amendment bringing in a corporation in liquidation as assignee
of the party plaintiff
held, under such conditions, to
bring in the liquidator also.
Although irregularities may exist in appeal bonds, if the cases
are sent back for further proceeding, no order need be entered here
regarding them.
The facts are stated in the opinion.
Page 201 U. S. 197
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
In No. 199, the action was commenced April 21, 1903, by Antonio
Jose Amadeo, as sole plaintiff, to recover from the Northern
Assurance Company damages in the sum of $10,000 on a certain fire
insurance policy issued on property in Porto Rico. The policy was
dated December 21, 1884, and insured plaintiff against loss by fire
for one year from that date. The loss was alleged to have occurred
February 7, 1885.
Defendant filed several pleas, and, among others, that "the
alleged cause of action did not accrue within fifteen years before
this suit," and that, prior to the institution of the suit, the
policy and its proceeds had been duly sold and transferred by
plaintiff "to the firm of Pastor Marquez & Company, who are the
only persons entitled to sue herein."
Page 201 U. S. 198
Plaintiff demurred to both these pleas, but subsequently, by
leave of court, amended his declaration by adding to the caption,
after the name Amadeo, the words "for the use of and together with
Pastor Marquez Company, in liquidation," and by inserting in the
body of the declaration the following:
"And plaintiff avers that, about the month of August, 1885, the
said policy was assigned to the Pastor Marquez Company, which is a
company in liquidation and of which Pedro Salazar is
liquidator."
Thereafter, plaintiff's demurrer to defendant's pleas of
prescription was overruled by the court, and plaintiff excepted,
and subsequently replied that the prescription pleaded had been
interrupted "extrajudicially." To that replication defendant
interposed a demurrer, which was sustained by the court. Plaintiffs
thereupon declined to plead further, and the court entered
judgment, January 12, 1904, as follows:
"And it is therefore adjudged by the court that issue is found
in favor of the defendant, and that the plaintiffs recover nothing
herein, and that the defendant go hence with judgment for cost
against the plaintiffs."
It now appears that plaintiff Amadeo died intestate May 14,
1904. September 20, 1904, application was made for the allowance of
a writ of error from this Court to review the judgment, which was
allowed September 21, 1904. On December 20, 1904, an appeal bond in
the sum of $500, wherein Pastor Marquez & Company was named as
principal and Lucas Amadeo and Felix Salazar as sureties, was filed
in the clerk's office of the district court, but the bond did not
bear the approval of the judge. The bond was entitled "Antonio Jose
Amadeo and Pastor Marquez & Company vs. Northern Assurance
Company;" recited that "whereas the above-named plaintiffs have
sued out a writ of error to the Supreme Court," etc., and was
conditioned that "the above-named plaintiffs shall prosecute said
writ to effect," etc. It was signed "Pastor Marquez & Com. en
Liquid. E. Salazar, Lucas Amadeo, Felipe Salazar." The writ of
error, which is dated December 31, 1904, bears the allowance of the
district judge, who
Page 201 U. S. 199
also signed the citation under that date. The writ of error and
the citation described "Antonio Jose Amadeo for the use of and
together with the Pastor Marquez Company, in liquidation," as
plaintiffs in error. The writ of error asserts that the error
complained of wrought damage to "said Antonio Jose Amadeo for the
use of and together with the Pastor Marquez Company in
liquidation." The transcript of record was docketed in this Court
March 15, 1905.
In No. 200, the action was brought by Antonio Jose Amadeo alone,
upon two policies of insurance against the Royal Insurance Company,
April 21, 1903. The policies of insurance were dated September 15
and December 21, 1884, respectively, and insured plaintiff against
loss and damage for one year from their respective dates. The loss
as alleged occurred February 7, 1885. Defendant, among other
defenses, pleaded prescription of fifteen years and transfer by
plaintiff, prior to the institution of the suit, of the policies
and all interest therein. To these pleas plaintiff at first
demurred, but subsequently, with leave of the court, amended his
declaration as follows: in the title, after the name of the
plaintiff, by adding the following words, "for the use of and
together with the Pastor Marquez Company in liquidation," and by
adding in the body of the declaration the following:
"And plaintiff avers that, on or about August, 1885, the said
policy was assigned to the Pastor Marquez Company, which is a
company in liquidation and of which Pedro Salazar is
liquidator."
Plaintiff's demurrer to defendant's pleas of prescription having
been overruled and exception thereto noted, plaintiff replied that
the prescription had been interrupted "by extrajudicial demand;" to
which replication defendant interposed a demurrer, which was
sustained. And, plaintiff having refused to plead further to
defendant's pleas of prescription, and "failing to offer proofs as
to the other issues made and tendered," judgment was, on the
fifteenth day of January, 1904, entered for defendant as
follows:
"That the plaintiffs herein, Antonio Jose Amadeo, for himself
and for the use and benefit of the firm of Pastor
Page 201 U. S. 200
Marquez & Company, and Pedro Salazar as liquidating partner
of the said Pastor Marquez & Company, take nothing by either of
their said suits, and that the defendants go hence without day and
recover of and from the said plaintiffs all costs in this behalf
incurred or expended, for which execution may issue."
Petition for allowance of writ of error was filed September 20,
1904, and allowed the next day. An appeal bond entitled "
Jose
Antonio Amadeo and Pastor Marquez & Company vs. Royal Insurance
Company" was "filed and approved Dec. 20th, 1904," but the
copy of the bond in the transcript of record does not show the
approval of the district judge. This bond was signed by "Pastor
Marquez & Co. en liqui., E. Salazar, Felipe Salazar, Lucas
Amadeo," Pastor Marquez & Company being described as principal
and Lucas Amadeo and Felipe Salazar as sureties. The writ of error
and citation were as in case No.199. Record filed March 15,
1905.
No. 201 was a consolidation of two similar actions, and the
course of procedure was like that in Nos.199 and 200. The judgment
was rendered January 15, 1904, in favor of defendant and
against
"Frederico Amadeo, for himself and for the use and benefit of
the firm of Pastor Marquez & Company, and Pedro Salazar as
liquidating partner of the said Pastor Marquez & Company."
The appeal bond was filed December 20, 1904, and was signed by
"Pastor Marquez & Company, in liquidation, E. Salazar, Felipe
Salazar, and Lucas Amadeo;" and did not bear the approval of the
district judge. The record was filed March 15, 1905.
The sureties on each of the appeal bonds in Nos.199, 200, and
201 made affidavit as to their responsibility before the clerk of
the district court, and acknowledged the execution of the bonds
before him.
It was admitted at the bar that, on the merits, these judgments
must be reversed.
Royal Insurance Company v. Miller,
199 U. S. 353.
But it is insisted that the writs of error in Nos.199 and
200
Page 201 U. S. 201
should be dismissed because Antonio Jose Amadeo died after
judgment, and before the writs of error were sued out, and the
Pastor Marquez Company, if otherwise competent, could not prosecute
the writs until after notice to the succession of the deceased. And
further that, as it appeared that Pastor Marquez Company was in
liquidation, the writs of error as well as the actions could only
be prosecuted in the name of the liquidator, which was denied to be
the fact here. And that the writ of error in No. 201 should be
dismissed on the latter ground, as well as because of want of
summons and severance.
Antonio Jose Amadeo was dead when the writs of error issued in
Nos. 199 and 200, and it is contended that the writs cannot be
maintained, because the actions had not been revived below, the
death was not suggested on the record, and no notice of intention
to take out the writs was given to his succession. Defendant,
however, pleaded, among other defenses, that Amadeo had no interest
in the cause of action, because the policies and their proceeds had
been duly sold and transferred to Pastor Marquez & Company, who
were alone entitled to sue. And thereafter the complaints were
amended, as previously stated. For the purposes of these motions to
dismiss, defendant in error cannot be permitted in this Court to
assert that Amadeo was other than a nominal plaintiff, and the
cases fall within the principle, occasionally applicable, that
parties having no legal interest in maintaining or reversing a
judgment or decree are not necessary parties to a writ of error or
appeal.
Basket v. Hassell, 107 U.
S. 602;
Germain v.
Mason, 12 Wall. 259;
Forgay v.
Conrad, 6 How. 201.
And although these records are much confused and very carelessly
made up, we think that it may be properly held that the effect of
the amendments was to bring the liquidator into court with the
liquidating company, and at all events that, in view of defendants'
pleas, the amendments thereupon, and the want of objection below in
respect of the liquidator, that objection should not now be
entertained in defeat of our jurisdiction. These considerations
control the disposition of No. 201.
Page 201 U. S. 202
As to the suggested irregularities in the appeal bonds, they do
not render the writs of error void, and we do not feel called on to
enter any orders in regard to them, as these cases must go back for
further proceedings.
Judgments reversed and causes remanded for further
proceedings in conformity with law.