Opinion
No. 1887
Decided September 10, 1946.
Parties — Action involving real estate — Plaintiff sold property while appeal pending — Proper party to prosecute appeal.
Where a plaintiff at the time of instituting his action owns real estate involved and, after disposal of the action in the trial court and subsequent to the taking of an appeal, sells such real estate, the action may be prosecuted in the name of such plaintiff.
APPEAL: Court of Appeals for Montgomery county.
ON MOTION to dismiss appeal.
Mr. I.C. Delscamp, for appellant.
Mr. Webb R. Clark, for appellees.
This cause is submitted on motion of the defendants, appellees herein, to dismiss the appeal for the reason that the plaintiff, appellant herein, is not the real party in interest.
The plaintiff, William E. Colley, instituted the action on September 28, 1944, on his own behalf and on behalf of all other persons similarly situated, and at that time was the owner of real estate situated in the village of Englewood. After the action was disposed of in the Court of Common Pleas and subsequent to taking an appeal to this court, the plaintiff, on January 5, 1946, sold the property which he owned in the village of Englewood.
The defendants contend that the appeal should be dismissed by reason of the provisions of Section 11241, General Code, which, in part, provides that "an action must be prosecuted in the name of the real party in interest." We are of the opinion that Section 11261, General Code, is controlling. It, in part, provides:
"On any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted for him."
We are of the opinion that this action may be prosecuted by the original party, and that the motion to dismiss the appeal should be overruled. We cite as authority in support of this position the cases of Cullen Vaughn Co. v. Bender Co., 122 Ohio St. 82, 170 N.E. 633, 68 A.L.R., 1332; Lowry v. Anderson, 57 Ohio St. 179, 48 N.E. 810; Detroit Ironton Rd. Co. v. Vogeley, 21 Ohio App. 88, 153 N.E. 86; and American Bonding Co. of Baltimore v. Second Natl. Bank of Cincinnati, 22 C.C. (N.S.), 177, 33 C.D., 502.
The motion to dismiss the appeal is hereby overruled.
Motion overruled.
HORNBECK, P.J., WISEMAN and MILLER, JJ., concur.