Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.
Before EVANS, PAGE, and SPARKS, Circuit Judges.
The questions presented are:
1. Can appellant, under his contract, join appellee Braun as a party plaintiff in the case below against her will and over her protest?
2. Did the trial judge have the power to review this question inasmuch as it had been decided adversely to appellees by the original trial judge, who was compelled to withdraw from the case on account of illness?
3. If the first question is answered in the negative, may appellant bring this suit and prosecute this appeal in his own name?
4. Were the shares in question effectively vested in the Canadian Custodian of Enemy Property under the consolidated orders respecting trading with the enemy, and the decree of the Superior Court of Quebec pursuant thereto?
5. If so, did such vesting constitute a bar to the alleged right of Lewis and Braun, or either of them, to require a transfer of the shares and the payment of dividends accrued since July, 1914?
The right of appellant to maintain the action in his own name, or jointly with Mary A. Braun, or with her as administratrix of the estate of her deceased husband, depends primarily upon whether or not he has an interest in the subject matter of the action. Equity rule 37 (28 USCA § 723) provides that
"Every action shall be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute, may sue in his own name without joining with him the party for whose benefit the action is brought. All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs, and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if his presence is necessary or proper to a complete determination of the cause. Persons having a united interest must be joined on the same side as plaintiffs or defendants, but when any one refuses to join, he may for such reason be made a defendant."
This rule specifically describes who may be plaintiffs, and, unless appellant brings himself within one of these seven descriptions, he has no right to maintain the action either individually or jointly.
It is quite apparent that appellant is not claiming this right by virtue of being executor, administrator, guardian, or a party with whom or in whose name a contract has been made for the benefit of another. He must, therefore, qualify either as a real party in interest, as a trustee of an express trust, or as a party expressly authorized by statute.
Whatever interest appellant has is derived from the two agreements entered into on the respective dates of July 17, 1920, and November 27, 1920. The first agreement merely authorizes Lewis to act as Braun's attorney and representative in the matter of the shares of stock belonging to Braun.The purposes of the agreement are: (1) to have the shares properly transferred to Braun; (2) to have the necessary certificates issued to Braun; (3) to put the property in Braun's name in order that he may have a clear title; (4) to secure for Braun the dividends due on the stock, and to collect such sum as is due him; (5) to bring about the protection of Braun and of his property. To accomplish these purposes Braun authorizes Lewis to take any steps and any course in Braun's name, and to make any demands in his name which in Lewis's judgment is best. Then follows a provision that, in case of ...