A. K. McInnis Lumber Co. v. Rather

Citations

• 111 Miss. 55
• 71 So. 264

Syllabus

<p>1. Assignment. Construction. Claim for personal injury. Judgment. Settlement. Res adjudicata. Action by assignor. Parties. Splitting cause of action. Trial. Nonjoinder of parties. Form of objections. Waiver. Evidence. Pleading. Motion to strike.</p> <p>An assignment by an employee to his attorney for legal services of a one-half interest in a cause of action against his employer for personal injury, based upon the amount of recovery by suit or compromise, and providing that no compromise should be made unless mutually agreed upon by the parties, was not an agreement to pay a contingent fee of one-half of the amount recovered, but was a valid assignment of a one-half interest in the cause of action, upon which suit might be maintained in the name of the assignee.</p> <p>2. Assignment. Judgment. Settlement. Res adjudicata.</p> <p>After notice of an assignment of this character, to the person causing the damage, the assignee is not bound by any settlement made by such person with the assignor without his con- . sent, nor, ordinarily, by a judgment to which he is not a party, recovered by the assignor on the cause of action assigned.</p> <p>3. Action by Assignor. Parties. Splitting cause of action.</p> <p>Where assignees held a valid written assignment of a half interest in the cause of action sued on, they are, under section 717, Code 1906, proper parties to the suit; and in order to prevent the cause of action from being split, resulting in defendants being harrassed by more than one suit, they are necessary parties thereto.</p> <p>4. Same.</p> <p>A nonjoinder of a person who should have been joined as a plaintiff, not apparent on the face of the declaration, can be availed of by a plea in abatement, or by nonsuit, if it appears from evidence at the trial.</p> <p>5. Same.</p> <p>A defendant, if he so desires may waive the nonjoinder as a ground for defeating the action and take advantage of it at the trial to the extent of limiting the plaintiff’s recovery to a pro