Oliver v. Walsh
California Supreme Court
Appeal from the District Court of the Fifth Judieial District, County of Amador. The original complaint in this action having been demurred to, the plaintiffs filed an amended complaint, in which they set forth “ that they, the said plaintiffs before and at the time of the committing of the several wrongs and grievances by the said defendants as hereinafter stated, together with one A. P. Usher, who has since sold and transferred his interest therein and in the cause of…
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Appeal from the District Court of the Fifth Judieial District, County of Amador. The original complaint in this action having been demurred to, the plaintiffs filed an amended complaint, in which they set forth “ that they, the said plaintiffs before and at the time of the committing of the several wrongs and grievances by the said defendants as hereinafter stated, together with one A. P. Usher, who has since sold and transferred his interest therein and in the cause of action hereinafter stated, and the damages arising therefrom, to the said plaintiffs, were lawfully possessed of certain…
1Opinion of the CourtJustice Heydenfeldt
Mr. Chief Justice Murray and Mr. Justice Terry concurred.
The District Court erred in overruling the demurrer to the amended complaint on the ground of non-joinder of a party plaintiff. The complaint shows upon its face that the wrong complained of was an injury to the joint property of the plaintiffs and one Usher, who they allege had sold his interest to them. But a chose in action arising out of a tort is not assignable, and therefore Usher was a necessary party plaintiff.
The language of § 4 of the Practice Act, as amended by the Act of *4571855, which says, “ or thing in action not arising…
2Cited by4 opinions
- Wilkins v. StidgerCalifornia Supreme Court · 1863
- More v. MassiniCalifornia Supreme Court · 1867
- Cassetta v. Del FrateCalifornia Court of Appeal · 1931
- Glascock v. AshmanCalifornia Supreme Court · 1877