1068 WINTERS V. CRUM. [193 WIN . TERS V. CRUM. 4-4622 . Opinioh delivered April 26, 1937. .t • PARTIES—REAL PARTY IN INTEREST.—In an action on a promissorY note e)iecuted by appellee to the Merchants & Planteis Bank, and which was sold to appellant by the First National Bank which held -it -as collateral to secure a debt owed it by the original payee, appellant's testimony that he attended the sale and purchased the note for the First National Bank, and that said bank, 'dnd not he, became the absolute owner of the note was sufficient to justify the order dismissing the complaint.
ARK.] WINTERS il;; CRTIM! 1069 2. . F'LEADING =L COMPLAINT Nov TitEAti-D • ag,•AmENDED; • WaS, 110 eri0r in dismiSsing appellant!s eoniplaint in an action on a promissory .r note of which, the . ri. r.st Natiorial Bank ;was-owner where .theie was no . request : made :to- treat it l as amended by iliseiting after appelrant'S . n v aine,the:Word "tinstee" or f`nOrninee" • ' of the First -National- Bank;'sinee . th6 court waS . not n'Pon to find that hppellant : wag. autherized to . bring' . the.) actiori' as by :mistake he •• had• ;brought it as an individual. "trusteei" and that . • , • *Akieal • frorn. Arkansas 'Circuit 'Court, NOrthern t net TV:V. affirnied. • Galbraith, Ob-yld, for iiPIant.' Y: hith itg'i Lln. !'(.6 „ 111111S is an _appeal_from a, jinliment disinissing appellants „complaint . against app•llee which he . filectin .court,c;tArIcatisas,00ttnty, Nortijerji bistrict; ;to recover $2,79 , 5.25 evidenced hy a pronliSo.ry nOte eieOted , and: delivered by, appellee on February gs, mo, to- the . i■fierchants, " & Planters ':Bank of Humphrey} and by it 'assigned tO ihe i First National Bank oT, as collateral to_secnre ..an indebtedness the Merchants' 'k Planters' .Bani , :Of , Ilumphrey owe& saidFirst National Bank. It was alleged in the complaint that appellant was the , purchaser,of the ,note fOr,#,:valuable.considera-, tiOn before Maturity and . Via,S the OWner thereOf. .Appellee, filed, an answer to, , the complaint interpos. ing a :nurnher of,_ defenses,. one! ,of,thern •being a . denial that:appellant was„ the•owner of, thenote, • . :Thereafter Aho . deposition of appellant • Was , taken in
which he testified that the First ,National . Bank :of St .sold.this and other notes it held -aS Collateral to secure: the :indebtedness Merchants' S. Planters', Bank owed it, arid thatatthe sale he (appellant), at the , request 41.4 instance of :the .First National:Bank of, St. Louis, ibid,
$4,000 for , all the ;collateral,notes,. and that the First Na-:. tionat Bank entered : 4: credit. QII. j.tS ,books. Tot $4,000 oui.
account and note of the.:Merchants' &Planters . ' Bank •of
Humphrey; that he attended the sale ancl purchaSed the notes for the First National Bank of St. Louis and that said bank, and not he, became the absolute owner of the note. Wh•n the deposition of am p ellant was filed, ap-pellee filed a, motion to dismiss the action and complaint
1.070 WINTERS V. CRUM. [193 on the ground that appellant was not the owner of the note sued upon and was not the real party in interest, and was without authority to prosecute the suit. Upon a hearing, the motion was sustained and the cause of action and complaint was dismissed, over the general objection and exception of appellant. • A motion for a new trial was filed on the ground that the dismissal of the action and complaint was contrary to the law and evidence, which was overruled, whereupon, an appeal was prayed and granted to . this court. . Appellant contends for a reversal of the judgment because the trial . court erred in not treating his complaint as amended so as to insert after his name, trusthe or nominee • 'of the FirSt s National Bank who was the paity in interest instead of dismissing the action and complaint. No suCh request was made by appellant to the trial court, nor did appellant suggest' that the court 'should, in the exercise of a sound discretion, treat the 'coinplaint amended instead of dismissing it. The only issue presented to the court waS whether appellant owned the note and was the proper party to bring the suit, and, finding that he was not, it 'was the court's duty to dismiss the action. The "court' Was not called upon on its own initiative to find that the First National Bank of St. Louis was the owner of the note and that appellant would be authorized as trustee to bring the suit for it, and that through mistake or inadvertence he had brought the suit as an individual instead of in his representative capacity. It would have been time for the court to exercise its discretion when such a request was made. Not having been requested to exercise its discretion and not having exercised its discretion, certainly the judgment cannot be reversed on the ground that the trial court abused its discretion in not amending or treating the complaint as amended to conform to the proof. Affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.