Noziska v. Aten, 152 N.W. 694

Noziska v. Aten

152 N.W. 694 | S.D. | 1915

WHITING, J.

This action was instituted in the name of John C. Noziska and F. F. Sinkler, as plaintiffs, and in their complaint they alleged, in substance, as follows: That the defendant is, and was at all times therein mentioned, a duly licensed and practicing attorney at law, holding himself out as such attorney within this state; that plaintiffs employed the defendant, as such, attorney, to prosecute a certain action in justice court, on behalf of plaintiffs and against one Mundorf and wife, for the recovery of money claimed to be due for merchandise sold and delivered by plaintiffs to said Mundorfs; that the defendant undertook to prosecute said action in a proper, skillful, and dilig-ent manner as the attorney for these plaintiffs; that the defendant, in prosecuting such action, procured the issuance of a writ of attachment, and, by virtue of such writ of attachment, had certain property of the Mundorfs seized, attached, and taken into the possession of one Holbrook, then a constable in and for the county wherein said action was brought; that these plaintiffs, by an undertaking given under the advice of defendant, indemnified the said Holbrook against loss by reason of said seizure and attachment; that it therafter appeared that the said Mundorfs were not residents of this state; that thereupon said action, under the advice and procurement of defendant, was abandoned, and another action instituted on behalf of these plaintiffs by said defendant, in which said action defendant sought to make service of piocess on the Mundorfs by advertisement, though no writ of attachment or summons in garnishment was procured or issued in said second action; that, upon such defective service of process and lack thereof, such action was prosecuted to judgment, and the property of Mundorf, seized as aforesaid, and still held by said constable, was sold to satisfy the- said judgment, all being done upon the advice of defendant acting as such attorney for plaintiffs ; that thereafter Mundorf brought an action in conversion against the constable for the conversion of the property attached and held by him, and recovered judgment*for the value of same, and for ■interest and costs, which said judgment these plaintiffs were compelled to, and did, pay and satisfy in accordance with their un*454dertaking and agreement with said constable to hold him harmless. Plaintiffs sought to recover from the defendant the amount so paid out in satisfaction of the judgment against the said constable. After answer plaintiffs sought leave of court to amend the complaint herein by substituting, in place of John C. Noziska as one of said plaintiffs, the names of John C. Noziska, E. D. Noziska, and D. L. Noziska, as copartners doing business under the firm name and style of Colome Mercantile Company. Leave was granted, and the complaint was amended by the change in the name of the plaintiffs, and by adding an allegation to the effect that the said three parties named as copartners were copartners doing business under the name and style of Colome Mercantile Company, and further amended to show that the undertaking entered into with the constable was the joint undertaking of the said copartnership and Sinkler. Trial was had, and verdict rendered in favor of plaintffs. Judgment having entered on said verdict, the defendant- has appealed to this court irom such judgment, and has assigned as error: (i) The granting of the order allowing the amendment to the complaint; (2) two certain ruling's of the court sustaining objections to questions asked of the plaintiff Sinkler when a witness upon the stand; (3) the overruling of defendant’s_ motion, made at the close of plaintiff’s case, and at the close of all of the evidence, asking for a directed verdict in favor of defendant.

The two assignments questioning the rulings of the court in excluding evidence need no further attention from this court than to state that, even if erroneous, it is clear the rulings could not have been prejudicial.

[1] In support of his motion for directed verdict, appellant urged that, in the action wherein it was claimed he was guilty of negligence, -the sole plaintiff was the mercantile company ; that.appellant was not attorney for Sinkler in such action; that, under the evidence in the present case, no separate judgments could- be entered in favor of the partnership and Sinkler; and that it appeared from such evidence that the plaintiffs were not jointly interested in the result -of this action, but that their interests were separate and distinct. There is no merit in any of these contentions. It appeared that the mercantile company and Sinkler held separate accounts against the Mundorfs. In ac*455cordance with the advice of appellant, Sinkler, for the mere purposes of suit and to prevent the necessity of two actions, assigned his claim to the mercantile company, in whose name, as plaintiff, the two actions in justice court were prosecuted, in both of which actions recovery was sought upon Sinkler’s claim, as well as the claim of the nominal plaintiff. Appellant was attorney for both the mercantile company and Sinkler. The mere fact the action was brought in the name of one of such parties for the purpose of avoiding the necessity of two suitsi did not make him attorney) for that one party only; in all that he did in the actions in the justice court appellant was acting as the attorney for both the partnership and Sinkler. It is unnecessary for us to consider the contention that no separate judgments could be entered herein for the reason that the trial court did not enter separate judgments. It needs neither argument nor authority to show that the claim of respondents against appellant is a joint claim. These parties had 'become jointly obligated to save the constable harmless; their liability to such constable was not limited to the .proportionate amounts of their claims against the Mundorfs; their liability being joint, their cause of action against appellant, which cause of action sprung from such liability to such constable, was also joint; and it was no affair of appellant’s whether the amount paid to the constable was paid by one or-■both of said parties; this was a matter of adjustment solely between themselves.

[2] Did the court err in granting the amendment? Appellant in obj ecting to such amendment, contended: (1) That the amendment proposed was not authorized by the statute, that such proposed amendment was in effect, the substitution of new parties plaintiff, and not the addition of new parties, and that the proposed complaint was not an amendment of the complaint, but a new complaint, setting forth a new cause of action; (2) that, from the affidavits submitted upon the hearing of the motion to. amend, if appeared that all the facts presented as a basis for such amendment were within the knowledge of the plaintiffs at the time of the commencement of this action, and that their attorney knew, or should have known, of the existence thereof. .From the affidavit cf respondents’ attorney, submitted upon the motion to amend complaint, it appeared that he drew the original complaint sup-. *456posing that the plaintiffs therein named were partners, that the claim upon which the suits in justice court were brought was a claim, which they, as partners, held against the Mundorfs, and that these two plaintiffs individually had given the undertaking to the constable; that he had since learned that the three Nosiskas were partners, and that such partnership was one, of the real parties in interest, and should have been made a party plaintiff. While .the showing made by defendant was such as might have justified the trial court in refusing the -amendment, yet- we do not believe, that such court, in granting the amendment, abused its discretion, provided, as a matter of law, it had power to allow the amendment.

[3] Was the amendment such an one as is authorized by section 150, C. C. P.? Such section provides:

“The court may, before or after judgment, in furtherance of justice, * * * amend any pleading, * * ■ * by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; or by inserting other allegations material to the case. * * *”

If this action had been brought by respondent Sinkler alone, and he had erroneously alleged, either that he alone entered into the undertaking with the constable, or that he and some other party other than the .true party entered into such undertaking, certainly the trial court would have had authority to allow an amendment correcting the mistake in such allegation, as such amendment would be one that should be allowed in furtherance of justice, unless, for some reason shown to the court, the court, in the exercise of a wise discretion, should have refused same. Kelsey v. C. & N. W. Ry. Co., 1 S. D. 80, 45 N. W. 204. After such amendment Sinkler coulcl have prosecuted such action to judgment and recovered against appellant upon such amended, complaint, provided appellant failed to demur to such complaint upon the ground of defect of parties plaintiff. That being true, it follows that there could be no error in granting to Sinkler the amendment showing who, in fact, was his joint obligor on the undertaking. If that had been the only amendment, then, unless there was a demurrer interposed upon the ground of defects in parties plaintiff, the cause could have been prosecuted to judgment, and judgment recovered by Sinkler, although his codefendant was nosuited. If, after such amendment, the defendant *457Had — as he clearly in such case might — demurred upon the ground that there was a defect of parties plaintiff in that the partnership was not a party to such action, clearly the court, in sustaining such demurrer, would have 'been bound to allow such partnership to be joined in an amended complaint and the cause to proceed. 15 Ency. P. & P. 750, 751; 30 Cyc. 143, 144.

The judgment appealed from is affirmed.