286 P. 406 | Mont. | 1930
Plaintiff brought this action to foreclose a chattel mortgage on a crop, given to secure the payment of a promissory note, and for damages for the conversion of the mortgaged property.
The crop consisted of wheat raised on land owned by defendant Long and which she had mortgaged in 1922 to intervener, the Edgar State Bank. The real estate mortgage is the same one involved inLong v. Devereux Co. et al., ante, p. 198,
The cause was tried to the court without a jury, resulting in judgment for plaintiff, from which this appeal was taken by defendant company and intervener. Defendant Long defaulted in the action.
The only questions presented here, in addition to those involved in the case of Long v. Devereux Co. et al., are that there is a misjoinder of parties defendant and an improper uniting of causes of action. These questions were raised by demurrer to the complaint by defendant company and intervener and by motion for nonsuit.
The action, so far as it affects defendant Long, is to recover[1] on the promissory note and to foreclose the chattel mortgage, and as to defendant W.P. Devereux Company, it seeks damages for conversion of the wheat covered by the chattel mortgage. Defendant company and intervener contend that the causes of action are improperly united under section 9130, Revised Codes 1921.
Generally speaking, an action in tort may not be joined with one on contract. (Nelson v. Great Northern Ry. Co.,
Likewise, section 9078 provides in part: "Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to the complete determination or settlement of the question involved therein." And under section 9090 the court is empowered to bring in all parties to a controversy in order to accomplish a full and complete determination of the matters *213
before it. Under similar statutes the supreme court of Idaho has held that an action to foreclose a chattel mortgage may be united with one in conversion against the purchaser of the mortgaged chattels. (Bank of Roberts v. Olaveson,
Section 9130 does not require that the causes of action united in one action should affect all parties equally or in the same manner. (Pomeroy's Code Remedies, 5th ed., sec. 374; 1 C.J. 1063; 1 R.C.L. 365; Pleins v. Wachenheimer,
The court did not err in overruling the demurrer to the complaint or in denying the motion for nonsuit. *214
Other questions presented by this appeal are controlled by the principles announced in the case of Long v. Devereux Co., etal., supra.
The judgment is affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MATTHEWS, GALEN and FORD concur.