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: 37
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1884.] MORRIS & CUMMINGS V. SCHOONER LEONA. 37
Opinion of the court.
pellants for their sole exclusive use and benefit. At the time the
money in question here was demanded of the schooner or its owner,
neither the city of Corpus Christi, nor any one else except the appellants,
had any right, title or claim to these tolls. One universally
recognized principle of law is, that where there is a right there is
also a remedy. Under our system, unless provided otherwise by
statute, the real owner of property, whether it be a chose in action
or not, can sue to reduce it to possession. No technical rule requiring
suit to be brought in the name of a person as a mere matter of
form has any place in our practice or system of laws-at least so
far as to preclude the party beneficially interested from suing in his
own name, when the nominal party refuses the use of his name as
It is averred in the present case that the city of Corpus Christi
had refused to permit this suit to be instituted or carried on in her
name. Not only so, but that she had placed herself on record in
court as being adverse to the interest of appellants and was aiding
and assisting in an attempt to defeat the collection of the tolls.
We regard it as a dangerous doctrine to allow one interested in
the defeat of a clear legal and equitable right to secure such defeat
by refusing the use of his name in a suit to enforce it, however
necessary in a technical point of view his presence may be as a
From what we have said, it is clear that the provision in the ordinance
accepting the channel, which requires Morris & Cummings to
demand, receive and collect tolls in the name of the city of Corpus
Christi, but for their own benefit, does not, under the circumstances
of this case, compel suit in the name of the city. Morris & Cummings
had completed the channel to the satisfaction of the city at
the time this ordinance was adopted, and they were, therefore, entitled
to the tolls, and to all reasonable methods for their collection.
No restriction imposed by the council at that date, which left it in
the power of that body to destroy the right by withholding at their
pleasure the name of the city to any suit like the present, could
prevent the collection of the tolls. Moreover, the appellants were
the owners of the bonds to the payment of which the tolls were to
be applied. It was an express provision of the one hundred and
ninety-sixth section of the act of May 22, 1873, which governed
the contract for the construction of the channel, that any person
holding said bonds could enforce the payment of these tolls in the
courts of the state by any compulsory process of law. This provision
would be annulled if the city, one of the contracting parties,
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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/m1/59/: accessed December 12, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .