Noonan v. Orton

31 Wis. 265 | Wis. | 1872

Lead Opinion

The following opinion was filed at the January term, 1872.

Dixon, C. J.

The statute enacts: “In all cases, the supreme court shall remit its judgment or decision to the court from which the appeal was taken, to be enforced accordingly; and if the appeal is from a judgment, final judgment shall, thereupon, be entered in the court below, in accordance therewith, except where otherwise ordered.” 2 Tay. Stats., 1633, § 7. This statute plainly contemplates a case where the supreme court is able to and does pronounce a judgment or decision in the cause, which judgment or decision shall be a guide for future action in the court below, and bind that court to proceed in conformity therewith. It likewise plainly contemplates a case where, if deemed just and proper, this court is capable of making some other order or giving some other specific directions for further proceedings in the court below, in place of the entry in that court of final judgment in accordance with the judgment of this court. But the case here under consideration was not such a case. Only two of tbe justices of tbis court were qualified to sit wben tbe cause was beard on appeal, and tbey were divided in opinion, and bence tbe court was incapable of pronouncing any judgment or decision directing tbe court below how to proceed, or which bound that court to enter judgment in accordance therewith. And for tbe same reason, also, tbis court was incapable of making any order or giving any specific commands or instructions in tbe premises. Noonan v. Orton, 27 Wis., 300. Hence, as correctly expressed in tbe remittitur, which is again brought up on this appeal, tbe cause was “ remanded to the said circuit court without directions as to further proceedings therein.” The statute, therefore, does not apply to sucha case, and the question arises as to what is the effect of such mere judgment of reversal, the two justices of this court concurring in that judgment, but upon entirely different and conflicting grounds. Is such judgment conclusive of the action, and must the court below, upon the cause being remanded, proceed to dismiss it ? It is manifest, if we consider the reasons which led to the judgment of this court, and resulted in its being one of mere reversal without directions as to further proceedings in the action, that this court did not intend such judgment to be a final determination of the cause. There was the very point of divergence, as to what such final determination should be. The two members of this court competent to act and' to decide, could not agree, and of course the court, as such, had no intention with respect to it. It was impossible, under the circumstances, that the court should have. In such case, the reasonable and proper rule would seem to be, that the reversal left the action in the court below in the same condition as it was before any judgment was rendered in it. If this were not the rule, but that the action must be dismissed, then it would follow that final judgment must be rendered against a party without f.ny intention or decision to that effect on the part of the court, which would be against reason. And upon examination we find that such has been held to be the general effect of a reversal of a judgment in equity, as this is, without directions, where no statutory provision or rule of court intervened to give it a different operation. The judgment being reversed, and the cause remanded to the court below, without instructions, it stands there precisely as it did at the former hearing, and the parties have the same rights, and the court the same discretion, as to further prosecution, that they then had. Broaddus v. Broaddus, 3 Dana, 536; Riley v. Wiley, id., 76; McLaren v. Hopkins, 1 Hopk. Ch. R., 576, 578; Pratt v. Grimes, 2 Chicago Legal News, 18. And the case of McLaren v. Hopkins is also an authority, if any authority be needed, that the reasons given by the appellate court are to be looked to in order to ascertain whether a final determination of the cause was intended. The court is, therefore, of opinion that the defendant was not entitled to a judgment dismissing the action on this ground, and that so far there was no error in the order of the court below overruling his motion for that purpose.

But the motion of the defendant was likewise based on another ground, which was the revocation in writing by the plaintiff McNdb of any authority on the part of the attorney of record for the plaintiffs to appear and prosecute the action for him or in his name, and also his, McNaVs, formal discontinuance of the action so far as he himself was concerned. Was the defendant entitled to any part of the relief demanded by the motion upon this ground ? Was he entitled to have the action dismissed as to the plaintiff McNdb f The plaintiffs are partners, and it is laid down by Mr. Grow, and is indeed a principle generally well settled, that one partner is competent to release a supposed right of action, even after proceedings to enforce it have been instituted by the firm. Gow on Parnership, 65. And the same author goes on to observe that as he may release an action, it seems to follow that he has the power of suspending proceedings in it, and he cites the case of Harwood v. Edwards, in the King’s Bench, reported by the author, note ^(r), -in which it was held, where three partners sued as plaintiffs, and two out of tbe three agreed with tbe defendant to accept common bail and stay proceedings for six weeks, that this agreement was binding- on tbe third partner. And Mr. Parsons also states tbe rule, that if two partners commence an action, one may release tbe subject matter of it, which release will be binding upon bis copartner and operate as a bar to tbe action. Parsons on Partnership, 174, note, citing Barker v. Richardson, 1 Younge & J., 362; Arton v. Booth, 4 J. B. Moore, 192; Furnival v. Weston, 7 id., 356; Jones v. Herbert, 7 Taunt., 421; Wilson v. Mower, 5 Mass., 411. In tbe case last cited, Chief Justice Parsons says: “ It has been inquired what remedy a man has, who has a good cause of action, where no severance lies, with another who will not consent to prosecute. It is his folly, saiih the law, to be concerned with such aman. But as any one of the parties interested in a personal action may release it, if it was released, the releasor would be accountable to his partners in the contract for the damages they had sustained, rind if one of the parties should unreasonably refuse to join in the prosecution of an action, which might well be maintained, perhaps the other parties might have a remedy by a special action on the case. But of this we give no opinion, as the point is not before us.” Bat in Loring v. Brackett, 3 Pick., 403, one of two joint plaintiffs, who had formerly been partners, having agreed that the action should be discontinued, the other made affidavit that the cause of action was a debt due to the partnership, and that the agreement was made to defraud him by collusion between his coplaintiff and the defendant; and thereupon the court refused to order a nonsuit. And Mr. Cow makes cases of gross collusion with debtors, where fraud manifestly appears, an exception where a release has been executed, and says that a court of law will control the legal power of one partner to release the debt, and, in the exercise of its equitable authority, will set aside a release granted by him. Gow on Partnership, 61. And so, in Winslow v. Newlan, 45 Ill., 145, it was held that one of two plaintiffs has no right to dismiss a suit, against the objections of the other, unless he can satisfy the court that the latter has no interest in the claim, -or that he is liable to be injured by its further prosecution, and even then he has no such right if his coplaintiff will indemnify him against loss. In Langdale v. Langdale, 13 Ves., 167, the lord chancellor decided that one coplaintiff in chancery might have the bill dismissed as to himself, upon consent of the defendant, and without notice to, or consent of the other coplaintiff. But, in a later case also in chancery, the right of some of the plaintiffs to withdraw and have the action dismissed as to themselves was denied, if, by so doing, the remaining plaintiffs in the suit would be injured, and the order was so framed as to protect them from injury. It appearing that one of the plaintiffs proposing to dismiss was out of the jurisdiction of the court, he was required to undertake to' put in his answer as defendant when the bill was amended, within a fortnight after the filing of the amended bill. Holkirk v. Holkirk, 4 Maddock’s Ch. R., 50.

Such are some of the authorities, in fact all we know of, touching the right of one plaintiff to discontinue against the will of his coplaintiff in a case like this. It will be seen that the power is generally conceded except where fraud and collusion are shown or it appears that the remaining plaintiff will suffer injury. In this case, it will be borne in mind, the plaintiff McNab did not attempt an entire discontinuance of the action. He only sought to discontinue as to himself, or to withdraw as one of the parties plaintiff to it. It will also be remembered that no fraud or collusion on his part in this particular is shown, nor is it made to appear that his coplaintiff will sustain an injury by his being permitted to withdraw. It is provided generally by statute that, if the consent of one who should be joined as plaintiff in the action cannot be obtained, he may be made a defendant, the reason therefor being stated in the complaint. 2 Tay. Stats., 1420, § 20. With such a statutory provision as this in force, and which is in substance and effect the old chancery rule enacted and made applicable to all actions, no good reason is perceived why the plaintiff McNab should be compelled to continue the prosecution of the action against his will, thus subjecting himself to future liability for the costs and expenses of the litigation, and to all the discomforts and vexations which may attend it. It would seem, under the operation of this rule, that any party plaintiff, deeming the litigation unprofitable or hopeless, or wishing from any other cause to withdraw from active participation in it, should be at liberty to do so at his pleasure, unless very peculiar circumstances are shown proving that injustice would thereby result to the other parties in interest. As in Holkirk v. Holkirk, the court, in directing the discontinuance, may make such order in furtherance of justice as shall be proper. It may give directions as to the costs and expenses which have already accrued, or as to how they shall be finally apportioned, and may determine when and under what circumstances the retiring plaintiff shall appear and answer as a party defendant to the action. If a like statutory regulation had existed in Massachusetts and Illinois at the time the decisions above referred to were made, it may be regarded as very doubtful whether the courts would have decided as they did, provided that the motions in those cases had been only to discontinue the actions as to the persons plaintiff by whom the motions were made. It is the opinion of this court, therefore, that the motion to dismiss, so far as the same was founded upon the plaintiff McNab's discontinuance of the action as to himself, and his revocation of all authority on the part of the attorney for the plaintiffs to appear and prosecute for him or in his name, should have been granted, upon such terms, in case the court below had seen fit to impose any, as, under the circumstances, would have been just and proper. The order appealed from, or that part of it denying the motion to dismiss, must therefore be so far reversed, and the cause remanded for further proceedings as directed in this opinion.

In Winslow v. Newlan the question was made, whether the refusal of the court below to dismiss the action on the application of one of the two coplaintiffs, could be taken advantage of or assigned as error by the defendants on their appeal, and the court held it could not. No such objection is taken by the counsel for the plaintiffs here, and, if it had been, we think it would have been untenable. This case differs essentially in its circumstances. It would seem here that the written direction for the discontinuance and revocation was made and signed by the plaintiff McNab, and delivered to the defendant, to be presented lo the court and made the basis of a motion on his, defendant’s, part to dismiss the action. Under such circumstances we see no reason why the defendant should not have been permitted to avail himself of it as a proper ground of motion in the court below, or why, if it was erroneously rejected by that court, he may not assign it for error on this appeal. It clearly cannot be said that the defendant has no interest in having the action dismissed as to one of the plaintiffs, or that he may not be benefited by it. It would certainly diminish the number of his opponents, and bring over to his side a part of the enemy’s forces, which in war would be considered good tactics, whether it be so in a law suit or not. But it may be so in the latter, and may add materially to one’s means of attack, or the resources by which a successful defense may be made.

The other branch of the order appealed from seems not to raise any question for our consideration. Although made at the same time with the order overruling the defendant’s motion to dismiss, and incorporated with it, yet it appears to have no necessary or other connection with that order than the mere fact that it was made and entered in that form. The motion of the defendant to dismiss was unconditionally denied, and there the order upon such motion appears to have ended. Then follows the residue of the entry, amounting to a distinct and independent order, based upon considerations entirely different from those upon which the motion, was made, and which are recited in the order. That part of the entry begins thus: “ But it appearing to the court that the plaintiff Peter McNab has declined and refused to execute any renewal of the lease mentioned in the complaint, it is hereby ordered that so much of said complaint as relates to and asks a renewal of the lease * * * be and hereby is dismissed,” etc. This was a kind of relief, or change in the form of the action, not connected with the motion and not asked for by it. It would seem to have been granted at the instance or upon the motion of the plaintiff Noonan; but whether it was or not, the record fails to disclose. The order may have been so made, or it may have been directed by the court without being applied for by either party. We are not informed. If made on the application of the plaintiff Noonan, then the question argued at the bar, whether the plaintiffs could voluntarily dismiss their action as to the primary and entire cause of it set forth in the original bill of complaint, and continue to prosecute it as to those matters arising subsequently and which have been brought in by supplemental complaints, might have been presented. It is contended by the defendant that when the principal cause has thus failed, the adjuncts or supplements must fail with it. Not being informed as to whether the plaintiffs have voluntarily dismissed their original complaint or not, we are not required to consider what would be the effect of such dismissal, and cannot do so. If it was not so dismissed, and if the law is, nevertheless, that the supplemental complaints should also have been, that order remaining unreversed, then it was incumbent upon the defendant to have made his motion for that purpose. And if, furthermore, the original cause of action or complaint was not so dismissed, then it follows that the defendant was not prejudiced by such order, or because the court below did not go further and dismiss the supplementary ^ ones likewise, unless the defendant made proper application for that purpose, and the same was improperly denied. He clearly suffered no injury from the mere order of the court dismissing the action of the plaintiffs as to the original cause, which is all that the record shows; and from such an order he cannot appeal, or claim that it should be reversed on his appeal from the other order made and entered at the same time.

By the Court.— Order reversed as above indicated, and cause remanded for further proceedings according to law.

---

Rehearing

The respondent moved for a rehearing and the following opinion upon the motion was filed at the June term, 1872.^*

Dixon, C. J.

The learned counsel for the plaintiff Noonan moves for a rehearing on several grounds stated in his argument, none of which are in our judgment sufficient to sustain the application.

1. It it exceedingly doubtful whether the sale by the plaintiff McNab to the defendant Orton of his, McNaVs, share or interest in the copartnership property of the firm of Noonan & McNab was, under the circumstances, any violation of the covenant or stipulation contained in the articles of copartnership. Such sale, as it seems, did not take place until after there was an end of the copartnership by the commencement of an action for a dissolution, and for the collection and payment of debts and distribution of assets under the direction of a receiver, who had been appointed and had taken possession of all the co-partnership effects and property. The sale by McNab was only of his residuary individual interest after all proper claims upon the copartnership were paid and satisfied. It is very doubtful whether a proper construction of the covenant would not limit its operation to a sale by either partner without the consent of the other during the life of the copartnership, or so as to prevent a dissolution in that way. It is very doubtful, when the copartnership was in effect ended, or no longer to be continued except for the purpose of winding up its affairs, whether McNab was not at full liberty to make tbe sale as be did. Tbis matter is in so much doubt and uncertainty that we think, for tbe purposes of tbis motion, it cannot be held that McNab bad no right to sell; and inasmuch as tbe alleged fraud upon tbe rights of Mr. Noonan, in tbe sale by McNab and bis discontinuance of tbe action, grows out of and is based solely upon tbe alleged violation of tbe covenant not to sell, it follows that nothing is shown in tbis respect to prevent giving effect to McNab's order discontinuing tbe action as to himself.

2. Tbe order of tbe court in tbe action of McNab v. Noonan, for tbe dissolution of tbe copartnership, authorizing either of tbe parties to that action (who are tbe plaintiffs in tbis) to prosecute tbis action, was merely permissive. It was not ordered or adjudged by tbe court in that action, that it was necessary or proper for tbe protection of tbe rights and interests of tbe firm or tbe rights and interests of its creditors, that tbis action should or must be prosecuted by or under tbe direction of one or both of tbe plaintiffs. Neither did tbe court adjudge or direct that the same should be prosecuted by or under tbe direction of tbe receiver. On application of tbe plaintiff Noonan, tbe defendant there, tbe court merely permitted or licensed such prosecution by the plaintiffs or either of them. The order read (we quote from tbe argument of counsel) as follows: “ It is hereby ordered by tbe court that said Noonan and McNab, or either, are allowed to prosecute said suit in tbe Racine county circuit court to judgment; and orders of tbis court to tbe contrary are hereby modified so as to allow such prosecution.” Tbis case stands, therefore, as if there bad been no appointment of a receiver and no action for a dissolution, and presents merely tbe general question of McNab's right to discontinue or withdraw himself from tbe litigation.

3. Tbe provisions of sec. 1, cb. 185, R. S. (2 Tay. Stats., 1572, § 1), have no application to or bearing upon tbe question here presented. It is true, as counsel says, that tbe vendee has a right to continue tbe action in tbe name of tbe original party, or to cause his own name to be substituted. It is also undoubtedly true, as he says, that the vendor, after selling, cannot, without the assent of the vendee, exercise the option of discontinuing. He loses that right by the sale and under operation of the statute. But counsel well observes: “It may be said that Orton, being the vendee, had a right to do anything in the name of McNab that McNab could do if he had not sold to Orton.'1' Just so we think; and we think, furthermore, if McNab chose to discontinue and Orton assented to and insisted upon his doing so, that no other person can be heard to complain of it.

4. It is said we have made a gross mistake in supposing that McNab's discontinuance, or right to discontinue, was before us at all on this appeal. The motion was founded, as appears by it, “ upon the record and proceedings in this action.” A part of such record and proceedings as found in the printed case immediately preceding the motion, was the written revocation and discontinuance signed by the plaintiff McNab. In the order of the court overruling the motion, express reference was made to the written discontinuance, or to that part of it in which McNab refused to execute any renewal of the lease; and the same was made the foundation of that portion of the order dismissing the complaint so. far as it asked such renewal. The learned counsel is of course much more familiar with what occurred in the court below than we are, and it may be that he can see that McNab's discontinuance was entirely foreign to the order under consideration, and from which the appeal was taken; but looking on the face of the record, and taking that for our guide, as we are bound to do, we certainly cannot see it in that light. It appears to us, not only that the Written discontinuance was before the court upon the motion, as in some way the foundation of or connected with it, but that it was also actually considered by the court in making the order.

5. Costs in this court are given to the prevailing party by statute, and, except in actions for divorce and perhaps some others -which are subject to peculiar rules and provisions, the construction has always been that the court has no discretion in the matter. And the modification or partial reversal of an order or judgment has for this purpose always been considered equivalent to an unqualified or total reversal. The party obliged to come here by appeal for such modification or partial reversal is considered the prevailing party and entitled to costs.

6. It is not necessary, nor does this court controvert or question the general correctness of the principles of law stated by counsel in his sixth point or proposition. An examination of the record fails to disclose, as it seems to us, any facts and circumstances calling for an application of those principles. It does not appear that the withdrawal of the plaintiff McNab from the litigation is such a disturbance of the rights of his co-partner, or of the creditors of the firm, as ought to operate to bind McNab to continue the prosecution of it against his will, and against what he may consider to be for the good of himself and of the firm. The action may still go on, if the plaintiff Noonan so elects, in his name, McNab being made a party defendant, and thus all the rights, legal and equitable, of the partner choosing to prosecute, be saved and redressed.

By the Court. — Motion denied.

* The argument of respondent’s counsel upon this motion is not found on the flies.