115 Neb. 690 | Neb. | 1927
The plaintiff appeals from a final order and decree of the district court sustaining demurrers of six defendants and, upon refusal of the plaintiff to plead over, dismissing the action as to these six defendants, and sustaining the special appearances of the remaining two defendants.
A statement of the main facts alleged-in the petition is necessary to an understanding and disposition of the case. The plaintiff is the receiver of the Citizens State Bank of Chadron, in Dawes county. The bank was capitalized at $75,000 and was under the jurisdiction of the department of trade and commerce. On January 17, 1925, the department took possession of the property and business of the
In view of the discussion later, we quote the last paragraph and the prayer of the petition: “Plaintiff alleges that said notes were executed by the defendants, respectively, at the same time and place, and under the same agreement and circumstances, and that the defendants have a common interest in the question as to their liability thereon; that, on account of defendant’s denial of plaintiff’s title to said notes and their liability thereon, the plaintiff is unable to advantageously sell said notes, and that action at law would involve a multiplicity of suits; that plaintiff has no adequate, efficient or prompt remedy at law. Wherefore, plaintiff prays (1) that the plaintiff’s title to the promissory notes herein described be quieted and confirmed; (2) that it be adjudged and decreed that said promissory notes are the valid and unconditional obligations of the makers thereof, and that plaintiff is entitled to recover judgment thereof; (3) for such other and different relief as equity and justice may require.’’
Plaintiff contends that this is a proper suit for equity. Defendants vigorously assert that it seeks to combine eight law actions in one equity suit and to deprive them of a right to separate jury trials. The defendants May particularly stress their legal and constitutional right to a jury in a forum, not of plaintiff’s choice alone, but in a jurisdiction where they may be served with process as individual defendants and may contest their liability unhampered by codefendants sued on other and different contracts with different defenses.
In the several briefs various questions are argued. The chief proposition in the case, as contended for-by the appellant, is this: That equity has jurisdiction in this action because there is a common and decisive point of litigation between the plaintiff and the separately liable defendants, both as to the facts and as to the law involved; and that, in such situation, the convenience of the plaintiff is not overcome by the greater inconvenience of the defendants, and equity will join such defendants in a single suit in order to avoid a multiplicity of suits. The appellees do not so much oppose this proposition as a general rule sustained by a great weight of authority in proper cases, but they argue that the rule is not applicable to
Wyman v. Bowman, 127 Fed. 257, wherein is stated the general rule contended for here by the appellant, was an action in which the receiver of a corporation was enabled by the application of the rule to enforce in equity a sufficient percentage of the original unpaid subscription of the several defendants to the capital stock of an insurance company to liquidate its debts upon insolvency and exhaustion of its assets. In the opinion in that case Judge Sanborn clearly indicated the difference between its facts and those of “ Hale v. Allinson, 188 U. S. 56, in which the supreme court sustained the dismissal of a bill in equity brought by a receiver against 47 stockholders to enforce their double liability;” and the more recent case of Carey v. McMillan, 289 Fed. 380, calls attention to the fact that Wyman v. Bowman is not in conflict with Hale v. Allinson, nor with the case then under consideration, and holds as follows: “A receiver for a corporation which is hopelessly insolvent cannot by an ancillary bill confer jurisdiction in equity on the receivership court to determine the liability of the makers on notes given to the corporation in payment for its stock, on the ground of avoiding a multiplicity of suits, where there is no question of contribution or accounting, but the claim against each maker is an independent and purely legal demand for the amount due on his note.”
Crawford Co. v. Hathaway, 67 Neb. 325, is but an affirmation of the general rule that, in order to prevent a multiplicity of suits, equity has jurisdiction to enjoin in one action a large number of riparian owners from infringement, under color of right, of superior rights under the irrigation act. Bailey v. Tillinghast, 99 Fed. 801, merely applies the general rule that equity has jurisdiction to prevent a multiplicity of suits where there is a common
We are not without authority in our own court on this subject. In Burke v. Scheer, 89 Neb. 80, this court said in the syllabus: “A single suit in equity cannot be maintained by the receiver of an insolvent mutual hail insurance company, organized under chapter 43 Comp. St. 1909, against all of the policy-holders of such insolvent company, for the separate liability of each policy-holder for unpaid assessments, whether levied by the directors of the company before insolvency, or by the court thereafter, on the ground that such single suit would prevent a multiplicity of actions at law; nor can such a suit be maintained on the ground that it is ancillary or auxiliary to the main insolvency proceeding; nor upon the ground that the money when collected would become part of a fund that would be distributed under the direction of the court, since no question is involved in which the defendants have a common interest, and the suit is merely an aggregation of separate actions at law, each involving separate issues and having no relation to each other, except that there is a common plaintiff, and in each of which the remedy at law is adequate, and is the remedy pointed out by the statutes governing such companies.” In the body of the opinion, the court said: “The claim that the present suit will avoid
- In Dickinson v. Kline, 96 Neb. 435, the court quotes from the case of Hale v. Allinson, 188 U. S. 56, and from Kennedy v. Gibson, 8 Wall. (U. S.) 498, the general rule that, “Where the whole amount is sought to be recovered the proceeding must be at law;” and then say: “This is the rule that this court has sought to apply in Burke v. Scheer, supra, and in other cases. * * * But a stockholder who is liable at all events for a definite fixed amount has no community of interest in questions of law or fact with any other defendant.”
The suit of the appellant against the appellees aggregated the same amount as the assessed liability against the stockholders. The suit was upon notes given by individual defendants. Each note was a separate contract. The defendants might be classified as occupying different positions with different defenses to obligations evidenced by their several notes. Community of interests of defendants in questions of law and of fact was not definitely present. The ultimate purpose of the plaintiff was to recover separate, and not joint, judgments against the several defendants on the notes as specifically indicated in his prayer, though other clauses of the prayer screened that purpose to some extent, but not effectually. On the principle announced in our previous holdings, we are of the opinion that the- action was one at law, and not a suit in equity. This being so, it is unnecessary to carry the discussion further on the lines taken by some of the defend
Affirmed.