203 N.W. 608 | Minn. | 1925
Respondent brought the action as a taxpayer of the city of Eveleth to recover in its behalf $29,780.30, paid to Saari Brothers for 342,000 feet of lumber purchased by the mayor without obtaining bids, as required by the city charter. The complaint alleges that the city received but a small portion of the lumber and that the sum mentioned was paid by orders drawn on the permanent improvement fund of the city by the mayor, city clerk and city treasurer, after the city council, at a meeting at which all its members were present, had voted to delegate the authority of the council to the mayor and E.H. Berg to purchase and pay for the lumber.
It is alleged that the mayor, clerk, treasurer and two of the councilmen, ever since taking office, have been actively engaged in squandering the city's money and have illegally expended more than $150,000 for baseball, football, hockey and for a hockey rink; that *50 the expenditures here complained of were made after numerous suits against the city officials had been instituted on account of other illegal expenditures of a similar nature and after an injunction had been issued to put a stop to them.
The mayor, clerk, treasurer, councilmen and the sureties on their official bonds are joined with Saari Brothers and the city as defendants.
The first ground of demurrer has not been argued and need not be considered.
The third is disposed of by the opinion in Burns v. Essling, infra, page 57, and by Town of Buyck v. Buyck,
This leaves for consideration only the second ground of demurrer. It is obvious that the demurrer cannot be sustained on that ground unless the facts pleaded give rise to two or more causes of action and the several causes of action pleaded are improperly united.
Is it true that more than one cause of action is pleaded?
If the surety companies had not been joined as parties defendant, there could be little doubt about the answer. The vote of the council under which the city's money was withdrawn from the treasury, the ministerial acts of the mayor and clerk in issuing the orders upon which the money was withdrawn, and the act of the treasurer in paying the orders, were the successive steps taken to transfer the money from the city treasury to the pockets of Saari Brothers. It is alleged that all who took part in the transaction knew that their acts were illegal, and it is a fair inference from the facts pleaded that there was concerted action. If there was, all concerned were jointly and severally liable. Dun. Dig. § 9643.
It would seem that the question is whether there has been a misjoinder of parties defendant rather than an improper joinder of causes of action. See Mayberry v. N.P. Ry. Co.
If the cause of action against one of the wrongdoers and the cause of action against his surety could be united because both sprang from the same transaction, there is no good reason for holding that, when all the wrongdoers are sued, their sureties should not be joined with them.
The design of the joinder statute, section 9277, G.S. 1923, is to avoid a multiplicity of suits by enabling parties to settle in one action all their differences arising out of and relating to the same transaction. Dun. Dig. § 7500. The causes of action united must affect all the parties, but need not affect them equally or in the same manner. Dun. Dig. § 7502; Price v. M.D.
W. Ry. Co.
Each surety was responsible for the wrongful acts of its principal. The principals in the bonds were joint tort feasors for whose acts the sureties had made themselves responsible, and although the fact that the statute providing for liquor dealers' bonds contains language not applicable to the bonds of city officers, the principle announced in Pete v. Lampi,
In Burns v. Essling,
Seven bonds, all running to the city, are set out in the complaint. The Aetna Company is surety on the bond of the clerk, the treasurer and two of the councilmen, and the Royal Indemnity Company is surety on the bond of the mayor and the other two councilmen. Each bond is conditioned for the faithful performance by the principal of his official duties.
The complaint charges each of the principals with official misconduct which has resulted in injury to the city. The alleged misconduct occurred in the course of the transaction by which the city's money was illegally turned over to Saari Brothers. The amount Saari Brothers received exceeds the total amount of the bonds. If the respondent prevails, all the defendants except the surety companies may be held for the whole amount, and each surety may be held for the amount of the recovery against his principal, not in excess of the amount of the bond.
If appellants' contention that there is a misjoinder were sustained, it would be necessary to bring not less than four and possibly seven separate actions to enforce a single claim for restitution. The law looks with disfavor upon any rule of practice which makes necessary a multiplicity of actions when the rights of all parties can be adjusted in one action. The statute relative to joinder of causes of action and joinder of parties to the action should be liberally construed to avoid unnecessary litigation. Thus construed, there is no difficulty in upholding the joinder which appellants attack.
Order affirmed. *53
