Rutherford v. Cole

Martin, J. delivered the opinion of the court. The plaintiff, as mortgagee of a tract of land of the defendant, had it sold under an or der of seizure. Donaldson, who states himself to be a posterior mortgagee of the same tract, presented a petition of appeal to the judge, who had granted the order, in his own and the defendant's name, before the payment of the money. The appeal was granted : hut the defendant hearing of this forwarned the clerk of this court from receiving the record, as he wished no appeal, and had not authorized the use of his name. The clerk having accordingly declined to receive it, a motion is now made for our direction to him to receive and file it. The attorney, whose name appears at the bottom of the petition of appeal, candidly admits, *218 he was not authorized by Cole, to pray for the appeal, but that he asked it on behalf of Donaldson only. West. District Sept. 1817 He contends, that Donaldson is a creditor of Cole, and has a right to exercise all the rights and actions of his debtor, except those which are exclusively attached to his person. Code Civ. 262, art. 66. On the part of the plaintiff and appellee, it is contended, that this court cannot receive any evidence, except that which comes up with the record-that the applicant does not thereby appear to be a creditor of Cole, except from his own naked assertion that Cole, not being a party to the record, the pretentions of the appellant cannot be safely admitted or contested by the appellee. We are of opinon, that it would be idle in us to look into any voucher, by which the applicant might endeavour to establish his claim on Cole, in whose absence, we cannot recognize him as a creditor. The applicant cannot take any thing by his motion.