21 Ohio Law. Abs. 294 | Ohio Ct. App. | 1936
OPINION
This case is in this court on appeal from the Court of Common Pleas of Cuyahoga County, and the case is submitted on a demurrer to the supplemental and amended petition.
The demurrer is on two grounds. First, that there is a misjoinder of parties plaintiff, and second, that the petition does not state facts sufficient to constitute a cause of action.
The petition wras framed and the case presented in oral argument on the theory that the action w'as brought by the plaintiff in behalf of himself as guardian, and other bondholders similarly situated, or, in other words, as a class suit.
While the plaintiff may state a cause of action for individual relief in behalf of himself as guardian by regarding as surplusage the allegations that the suit is also in behalf of others, yet when the pleading is considered on the theory in which it is framed and on which the case is presented on the demurrer as a class action, it is evident that the first ground of demurrer is W'ell taken. The bonds held by plaintiff and the others similarly situated are not joint contracts but are held severally just as though they were separate promissory notes in the hands of the parties. The various holders of these bonds can not be joined as plaintiffs in one suit for there is no community of interest and each bond is a separate contract. This seems to be the test. If the various bondholders can not be joined as plaintiffs, a class suit can not be maintained by one of them in behalf of the others. This principle is well recognized. The Ohio authorities support this theory.
1 Bates on Pleading, pages 51, 59, 70.
Waldsmith v Administrators, 2 O. 156.
Masters v Freeman, 17 Oh St 323.
Quinlan v Myers, 29 Oh St 508.
Stevens v Times-Star, 72 Oh St 112.
For the reasons stated, and on the authorities cited, the first ground of the demurrer to the supplemental and amended petition is sustained.
If the plaintiff desires to plead further he will be given ten days in which to plead, If he does not desire to plead further, final judgment will be rendered against the plaintiff and the suppelemental and amended petition dismissed.
