109 Neb. 552 | Neb. | 1922
This is an action brought upon four separate and distinct bonds given in an injunction action brought against the drainage district by Henry W. O’Neill, Cornelius K. Heffernan, and Elizabeth Leahy, to enjoin the construction of an irrigation ditch across the lands of the plaintiff. The bonds are briefly described as follows: One
To the petition in this case the defendants O’Neill, Heffernan and Heenan, and the administrators of Blessing and Gribble, after certain motions had been disposed of, filed demurrers to the petition, only two grounds of which need be considered: First, that several causes of action were improperly joined in the petition; and, second, that the petition did not state facts sufficient to constitute a cause of action. The defendant Mullally makes no appearance, and we are unable to determine from the record whether or not he was served. The several demurrers were sustained generally by the district court, but whether upon one or both of the above grounds does not appear, and, plaintiff declining to plead further, the action was dismissed, and plaintiff appeals.
The demurrers on the ground of misjoinder were properly sustained. Section 8602, Comp. St. 1922, requires that all causes of action united in one petition must affect all the parties to the action; and it is perfectly clear that Blessing and Gribble were only affected by the cause of action on the first bond, they not having signed any other; Mullally was only affected by the second and third bonds, .which he signed, and Heenan only by the fourth bond, the only one he signed. It is quite probable that these different defendants might have different defenses to the action upon the bonds which they signed respectively, and the code does not provide for separate judgments in different amounts against various defendants in this class of cases. See Raapke & Katz Co. v. Schmoller & Mueller Piano Co., 82 Neb. 716; Radcliffe v. Lavery, 100 Neb. 31. Upon the sustaining of the demurrer for this ground, upon application of plaintiff, separate actions might have been docketed under section 8613, Comp. St. 1922, but no such request was made. However, as the judgment of the lower court may have gone upon the general ground, we will proceed to dispose of that question.
Appellees further contend with reference to .the injunction bond that it had never been finally decided that the temporary injunction ought not to have been granted. We think this contention sound. In the early part of the decree appears the following with reference to the motion to dissolve the temporary injunction: “And the court being fully advised in -the premises doth sustain said motion and said injunction is hereby vacated, dissolved and set aside except as to the land owned by the plaintiff Elizabeth Leahy;” and, again, “doth find upon the issue joined generally in favor of the defendants and against the. plaintiffs, except as hereinafter expressly found in favor of the plaintiff, Elizabeth Leahy;, to which findings the plaintiffs each separately except.” But later, on in the decree we find the following:. “It is, .therefore, considered, adjudged and decreed-by- the court that, when the defendants shall have paid the county judge or secured proper acquittance fromthe
What has been said sufficiently disposes of the .questions presented as to all of the bonds, viewed as injunction bonds, but two of them also contain conditions appropriate to supersedeas or appeal bonds, and it remains to consider whether any cause of action is stated upon them in that character. So far as the third bond is concerned, in the penal sum of $5,000, $200 was to cover costs that might be adjudged against the appellee in that suit, but there is no allegation in the petition relative to this feature of the bond. The same statement is true with reference to the bond numbered four; so the only question with reference to that bond is whether the allegations of damage include items properly constituting elements of damage under the conditions of the bond. The bond is not set out, but it may be assumed that the condition was in the language of the statute, “if he
It is suggested by appellees that the fact that the injunction was made permanent as to the plaintiff Leahy is sufficient of itself to negative the proposition that the injunction was wrongfully obtained, but we think that sufficient appears in the record to show that the facts of her claim with reference to her individual lands were of such a different character from those connected with the other plaintiffs’ cause of action, so far as we are able to conjecture them from the record, that this proposition cannot be sustained.
One other question should be noticed. The action is brought against the administrators, respectively, of the estates of Blessing and Gribble, who died pending the injunction suit, and the point is made that they are not subject to a suit in their representative .capacity for the recovery of money only. The point is well taken. Comp. St. 1922, sec. 1374.
It results from the above considerations that the decree of the district court must be affirmed.
Affirmed.