42 Minn. 500 | Minn. | 1890
This action was brought against the defendant railway company to recover the value of a traction engine belonging to plaintiffs, (appellants,) and alleged to have been wholly destroyed through the defendant’s negligence. Thereupon the respondent corporation, as a mortgagee of the destroyed property, intervened by filing its complaint in the manner provided in Gen. St. 1878, c. 66, § 131, setting up the execution and delivery to it, by plaintiffs and another person, of three promissory notes, each for a specified sum of money; the execution and delivery of a chattel mortgage upon the traction engine to secure the payment of said notes; its proper filing, as by statute required; that a certain sum of money was due upon said notes at the date of the complaint in intervention, which sum greatly exceeded the value of the engine, when it was broken and injured by defendant’s negligence; the fact of the injury, and the amount of damages thereby sustained; for which amount the intervenor demanded judgment against defendant. To this complaint plaintiffs interposed a general demurrer, and from an order overruling it this appeal is taken. The appellants’ counsel seems to admit that, if the respondent has a right to intervene and participate in the litigation between the original parties, the complaint states a good cause of action. His contention is that the complaint is, in fact, an answer to plaintiffs’ complaint, in .which the respondent seeks to change the subject-matter of the action from one of tort to one, as he expresses it, “of contract ownership of the property.” The plaintiffs complain of the tortious act of the defendant, by which property belonging to them has been damaged. The intervenor corporation complains of the same tortious act in respect to the same property, of which it held the legal title as a mortgagee, to its injury. It requires
Order affirmed.