Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 35
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1884.] MORnIS & CUMMINGS V. SCHOONER LEONA. 35
Argument for the appellants.
MORRIS & CUMMINGS AND THE CENTRAL WHARF AND WAREHOUSE Co'
V. THE SCHOONER LEONA ET AL.
(Case No. 1487.)
1. ACTION -PARTIES.-The real owner of property, whether it be a chose in action
or not, may sue to reduce it to possession, and when a nominal party
refuses the use of his name as plaintiff for the benefit of the real party in interest,
no technical rule can prevent the real party from maintaining an action
to protect that interest.
2. SAME.- Therefore, where a franchise authorized the collection of tolls from
a lessee using a water channel, and for that purpose authorized suit to be
brought in the name of the city of Corpus Christi for the benefit of the owners
of the franchise, the refusal of the city to permit the use of its name as
a plaintiff could not defeat the right, and the owners of the franchise can
maintain the action in their own name.
8. SAME.- The right could not be destroyed by the refusal of the city council to
authorize a suit in the name of the city.
4. SAME.- By the act under which the water channel was constructed, it was
provided that any one holding the bonds of the city of Corpus Christi, to pay
which the tolls were to be applied, could enforce the payment of tolls in,the
courts by compulsory process. Held, that the appellants as owners of those
bonds could not be affected in their right to sue by a refusal of the city to
permit its name to be used as plaintiff.
APPEAL from Nueces. Tried below before the Hon. J. C. Russell.
This suit was brought by Morris & Cummings of New York, and
by The Central Wharf and Warehouse Company of Corpus Christi,
against the appellee to recover tolls for the passage of the Schooner
Leona through the channel between Corpus Christi and Aransas Bay.
They claimed to be entitled to all the rights, privileges and franchises
appertaining to the channel which had been granted by the
state of Texas to the city of Corpus Christi, or to any corporation
or person, and to be the owners of the bonds for the payment of
which the tolls were to be applied.
McCampbell c& Givens, for appellants, cited: Bill of Rights, Constitutions
of 1846 and 1870, sec. 14; Bill of Rights, Constitution of
1876, sec. 16; Milam County v. Bateman, 54 Tex., 153; Terrett v.
Taylor, 9 Cranch, 43; Pawlett v. Clark, 9 Cranch, 292; Cor. Bank
v. Chambers, Sneed & Marshall, 54; University v. Fay, 1 Murphy, 58;
Dartmouth College Case, 4 Wheat., 518; Cooley, Const. Lim., p. 278,
and note; id., 280 and 295; Toulumne Redemption Co. v. Sedgwick,
16 Cal., 11; Commonwealth v. New Bedford Bridge, 2 Gray,
330; State v. Phelan, 3 How., 441; State v. Hawthorne, 9 Mo., 389;
Von Hoffman v. City of Quincy, 4 Wall., 535; Broughton v. Pen
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth28512/m1/57/: accessed July 22, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .