66 Neb. 525 | Neb. | 1902
This was an action brought by the defendants in error jointly, claiming damages for the conversion by plaintiff in error, as sheriff, of certain goods. February 18, 1897, Francis E. Price gave a chattel mortgage on her stock of drugs in the store at the corner,, of Tenth and P streets in the city of Lincoln, Nebraska, for $500, to her husband, J. W. Price. The same day she also executed a chattel mortgage on the same drugs to J. R. Nichols for $100, for services as a clerk in the store; also to Chas. Yates for $10, for services in the store; also to J. I). Johnson for $25, for grocery bill; also to Victor Weiler for $20, borrowed money; also to W. L. Garten for $30, borrowed money; also to O. M. Seitz for $20, grocery bill; and also to F. J. Kelley, for $350. Of this amount $266 was claimed to be due for past services, $10 for borrowed money, and the.remainder for contemplated services in upholding the transfers; but on this indebtedness to Kelley ivas to be credited
Two briefs have been filed on behalf of the plaintiff in error, in one of which the sole question argued is the alleged misjoinder of the plaintiffs. It is urged that section 40 of our Code of Civii Procedure furnishes no warrant for joining these plaintiffs, because they have no common right; that their mortgages were filed at different times and their holding can not be joint. This result does not seem necessarily to follow even from holding their mortgages separate and distinct liens upon this same property. They allege a joint possession, which they say the sheriff has invaded. If in fact they were in the joint possession of these goods and the sheriff wrongfully took them, it would seem to constitute a common wrong against • all the tenants who were jointly holding. Each would have a joint interest with all the others in vindicating their joint possession. Their case Avould seem to come distinctly within the terms as well as the spirit of section 40 of the Nebraska Code of Civil Procedure. The question seems to be argued, however, as if there has been no attempt to take possession and the plaintiffs were simply trying in this action to vindicate a right under their several mortgages. Even if such were the case, we think, under the holding of this court in Earle v. Burch, 21 Nebr., 702, 710, and in the earlier case of Kaufman v. Wessel, 14 Nebr., 161, and the approval that has been often given to both those cases, that this court is committed to the applying in law actions of the equity doctrine that interest in the subject of the action gives a right to join as plaintiff. Earle v. Burch certainly holds that successive mortgagees, merely as such, and where possession has not been had on any of the mortgages, may join in replevying the property. If in a replevin action, why not, then, in one for conversion? A distinction is
In Lancaster County v. Rush, 35 Nebr., 119, the city of Lincoln was joined with the county in foreclosing a tax lien. This court says that the city need not have joined, but, as it had an interest in the sale certificate to the amount of its taxes, it properly might do so, under section 40 of the Code.
In England, in 1899, under similar statutory provisions, it was declared in Ellis v Bedford, 68 Law J. Ch., 289: “All persons having a common right which is invaded by a common' enemy, although they may have different rights inter se, are entitled to join in suing that common enemy in respect of that common right.” In that case the common right was to the use of cart-stands in a market, and a part of the invasion was the exaction of illegal tolls for their use from the different plaintiffs.
In Missouri,K. & T. R. Co. v. Haber, 44 Pac. Rep. [Kan.], 632, the joining of 145 parties in one action for damages by reason of the introduction of cattle having the splenic fever, and which communicated that disease to native cattle, was upheld. It is not thought that there was error in permitting the joint action of plaintiffs in this case.
Counsel for the sheriff insist that the case of Gray v. Rothschild, 48 Hun [N. Y.], 596, is entirely parallel to the one at bar and should control it. There is, however, a very manifest distinction between the two cases. The New York case was brought by creditors who had sold goods to the defendants. Those goods were made away with fraudulently. The creditors joined in an action for their value. It was held that it could not be maintained. The right of each plaintiff went, not to the whole goods, but only to the part of them bought from himself. In the present case, such right as each mortgagee had went to the entire lot of goods. Where to this is added joint possession, the right to recover jointly for their taking seems complete.
In the additional brief of the plaintiff in error complaint is made that the verdict is not sustained by the evidence, and of the giving and" refusal of instructions.
The complaint that the action was prematurely brought, because no demand had been made for payment by these plaintiffs, and also because the first mortgage to Price had not been paid, does not seem well founded. It ignores the possession of plaintiffs, which the jury were warranted in finding to have been in them and their agent.
The matter of refusal of instructions asked by defendant was not argued in this court. Their applicability to the evidence is not pointed out nor the prejudice from their refusal indicated. So far as they state the law applicable to this case, they seem to have been embodied in those given. If counsel were relying upon error in refusing any of them, it should have been pointed out specifically.
Complaint is made of No. 4 of the court’s instructions, as misleading and confusing, and of No. 7, as outside of the evidence. No. 4 seems a very plain statement of the right to prefer creditors. No. 7 seems a very explicit declaration that the accidental making of a mortgage for more than the amount due the mortgagee is not fraudulent. No. 9 is complained of as being in effect a direction to find for plaintiffs. We do not find in it anything but a statement that the same law given as to the sheriff applied also to the drug company, and that as plaintiffs asked no judgment against the drug company, it should not be included in the general verdict, and only the value of the goods taken on its execution need be found as to it. We discover no error in these instructions.
By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is
Affirmed.
Note. — Section 429 of the Code of Civil Procedure, is construed in the following- opinions, to wit: McReady v. Rogers, 1 Nebr., 124, 93 Am. Dec., 333; Bennett v. Townsend, 1 Nebr., 460; Cropsey v. Wiggenhorn, 3 Nebr., 115; Mercer v. James, 6 Nebr., 410; Fox v. Meacham, 6 Nebr., 533; Smith v. Silvis, 8 Nebr., 164; Jones v. Null, 9 Nebr., 61; Ryan v. State Bank, 10 Nebr., 531; Lamb v. Gregory, 12 Nebr., 508; Jennings v. Simpson, 12 Nebr., 558; Long v. Clapp, 15 Nebr., 417; Morrissey v. Schindler, 18 Nebr., 677; Boldt v. Budwig, 19 Nebr., 745; Earle v. Burch, 21 Nebr., 710; Hoke v. Halverstadt, 22 Nebr., 424; Roggenkamp v. Hargreaves, 39 Nebr., 545; Lininger v. Webb, 51 Nebr., 15.-W. F. B.