De Roberts v. Town of Cross

101 P. 1114 | Okla. | 1909

The questions for determination on this record are as follows:

(1) Were several causes improperly joined?

(2) Does the petition state facts sufficient to constitute a cause of action?

1. In the case of De Roberts v. Town of Cross, 15 Okla. 553,82 P. 735, Decided by the Supreme Court of the territory of Oklahoma September 6, 1905, the syllabus is as follows:

"When bonds are issued by an incorporated town for the purpose of funding outstanding warrant indebtedness, the warrants embraced within such bonds and for the payment of which such bonds are issued become merged in said bonds, and the payment of said warrants is necessarily postponed and suspended until the funds are realized from the sale of the bonds with which to take them up. And the proceedings in the district court by which the validity of the warrants is determined and the amount and terms of the bonds approved and authorized is in the nature of a decree or judgment of the court. If the sale of the bonds should be unreasonably delayed and the payment of the merged warrants unreasonably postponed, any interested party may maintain an action to set aside and vacate the proceedings by which the court authorized the bonding and to concel the bonds; and, until such proceedings have been vacated and the issue of bonds conceled, no action can be maintained upon the merged warrants."

The rule therein announced followed that in the case ofDiggs v. Lobsitz, 4 Okla. 232, 43 P. 1069. Following the decisions in said cases, the plaintiff brought an action in the court below to set aside and vacate the proceedings by which the court authorized such bonding, and to cancel the same on the ground that the defendant had failed, neglected, and refused to sell or dispose of any of said bonds, and still had and retained all of them, and failed and refused to refund said bonds as required by law. Said allegations apparently bringing the plaintiff strictly within the rule heretofore cited. But it is insisted by the defendant that the plaintiff cannot in the same action have the bonding proceedings set aside and canceled, and also have judgment upon the original warrants. In all the relief sought the parties are the same. It is a settled rule that, when jurisdiction once attaches, a court of equity will settle the litigation and do complete justice when the parties are the same without remitting the parties to a court of law, although as to some features of the case the remedy at law may be clear and adequate; and this is the rule even in states where courts of law and chancery are separately maintained. Stow v. Bozeman, 29 Ala. 397; Scruggs v. Driver,31 Ala. 274; Stewart v. Stewart, 31 Ala. 207. In the case ofAlexander v. Rea, 50 Ala. 450, it was held that a mortgagee may come into equity to have his mortgage reformed by the correction of a mistake in the description of the lands conveyed, and to have it foreclosed after the law day has passed; and, when jurisdiction of the court has attached for that purpose, it will go on and settle all questions in litigation between the parties growing out of those matters. In the same case it is further held that a bill by a mortgagee asking the correction of a mistake in the description of the lands conveyed and a foreclosure of his mortgage is not multifarious because it also seeks to have another mortgage executed on the same day with the first and conveying the same lands, together with other property, declared a general assignment, and held to inure to the benefit of all the creditors equally, who are not shown to be any other persons than the two mortgagees. In the case of Seibert et al.v. Thompson et al., 8 Kan. 66 (2d Ed. 53), it was held that, where a court of equity has all the parties before it, it will adjudicate upon all the rights of the parties connected with the subject-matter of the action, so as to avoid a multiplicity of suits. See, also, 16 Cyc. 106, and authorities cited in footnote 68.

The lower court, having acquired jurisdiction for the purpose of canceling and setting aside the funding proceedings and canceling said bonds into which such warrants had been merged, had jurisdiction to settle the litigation involving the entire subject-matter and transaction, and do complete justice without remitting the same parties to a separate suit in the same court, although as to some features of the case the remedy might be a clear law case. If this is the settled rule in states where there are maintained separate law and chancery jurisdictions, the greater reason exists why the rule should prevail in a state where such separate courts are not maintained, but the same court administers both law and equity. From the allegations of the petition the different counts were based upon separate warrants, all of which, however, were involved in the bonding issue which was sought to be set aside. There does not appear to have been any cause of action improperly joined in this case.

2. It appears that defendant's demurrer, to the effect that the petition did not state facts sufficient to constitute a cause of action, was based on the ground that the same was barred by the statute of limitations, and that, on account of the laches of plaintiff, he could not maintain said action. Plaintiff's allegation brings him clearly within section 4221, Wilson's Rev. Ann. St. 1903, which provides:

"If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives may commence a new action within one year after the reversal or failure."

The defendant's demurrer confesses this allegation in plaintiff's petition as being true, and such allegation was sufficient to remove the bar of the statute of limitations.

Both grounds of demurrer presented by the defendant should have been overruled. The judgment of the lower court is reversed.

All the Justices concur.