Allen v. Cruden

• Citation: 157 N.W. 974,34 N.D. 166
• Decision Date: 29 April 1916
• Court: North Dakota Supreme Court

157 N.W. 974

34 N.D. 166

STEVEN ALLEN v. F. R. CRUDEN, Frank C. Davies, H. Peoples, Peter Prader, and James G. Daily

Supreme Court of North Dakota

April 29, 1916

From a judgment of the District Court of Foster County, Coffey, J defendants appeal.

Affirmed.

Judgment affirmed with costs.

Geo. H Stillman and Edward P. Kelly, for appellants.

There is a misjoinder of causes of action. Some of the defendants are charged with a cause growing out of a contract, and one defendant with a cause as for a tort. They are not all affected in a like manner, nor are the so-called causes connected. Jasper v. Hazen, 2 N.D. 401, 51 N.W. 583; Swedish American Nat. Bank v. Dickinson Co. 6 N.D 222, 49 L.R.A. 285, 69 N.W. 455; Mares v. Wormington, 8 N.D. 329, 79 N.W. 441; First Nat. Bank v. D. S. R. Johnson, Land Mortg. Co. 17 S.D. 522, 79 N.W. 748; Henney Buggy Co. v. Higham, 7 N.D. 45, 72 N.W. 911; Niven v. Peoples, 23 N.D. 202, 136 N.W. 73; Howse v. Moody, 14 Fla. 59; Clark v. Holbrook, 146 Mass. 366, 16 N.E. 410; White v. Preston, Tex.App. , 15 S.W. 712; Haskell County Bank v. Bank of Sante Fe, 51 Kan. 39, 32 P. 624; Hendrix v. Fuller, 7 Kan. 331; Atchison, T. & S. F. R. Co. v. Sumner County, 51 Kan. 617, 33 P. 312; Hentig v. Southwestern Mut. Ben. Asso. 45 Kan. 462, 25 P. 878; Addicken v. Schrubbe, 45 Iowa 315; St. Joseph's Orphan Soc. v. Wolpert, 80 Ky. 86; Preston v. Davis, 8 Ark. 167; Jackson v. Bush, 82 Ala. 396, 1 So. 175; Kennedy v. Stallworth, 18 Ala. 263; Johnson v. Kirby, 65 Cal. 482, 4 P. 458.

A statement of fact in an exhibit attached to and made a part of a pleading cannot supply a necessary allegation omitted therefrom. McPherson v. Hattich, 10 Ariz. 104, 85 P. 731; Sim v. Hurst, 44 Ind. 579; Union Sewer Pipe Co. v. Olson, 82 Minn. 187, 84 N.W. 756; Sweeney v. Johnson, 23 Idaho 530, 130 P. 997; Malheur County v. Carter, 62 Ore. 616, 98 P. 489; Sumner v. Griffin, 130 Ky. 323, 113 S.W. 422; Hoopes v. Crane, 56 Fla. 395, 47 So. 992; Standard Lumber Co. v. Colwell, Ky. , 117 S.W. 286; Bank of Anderson County v. Foster, 146 Ky. 179, 142 S.W. 225; Panhandle Teleph. & Teleg. Co. v. Amarillo, Tex. Civ. App. , 142 S.W. 638; Aldrich v. Amiss, 178 Ind. 303, 99 N.E. 419; First Nat. Bank v. Dakota F. & M. Ins. Co. 6 S.D. 427, 61 N.W. 439.

Exhibits attached to and made a part of the pleading are to be treated as in aid of or as elucidating the allegations of the pleading; but never to supply a necessary allegation. Burks v. Watson, 48 Tex. 115; Wynne v. State Nat. Bank, 82 Tex. 378, 17 S.W. 918; Milliken v. Callahan County, 69 Tex. 206, 6 S.W. 681; Ward v. Clay, 82 Cal. 502, 23 P. 50, 227.

When the exhibit is repugnant to the pleading, the pleader will be held most strongly to the exhibit. Marshall v. Hamilton, 41 Miss. 233; C. Aultman & Co. v. Siglinger, 2 S.D. 442, 50 N.W. 911; Wright v. Sherman, 3 S.D. 292, 17 L.R.A. 792, 52 N.W. 1093; First Nat. Bank v. Dakota F. & M. Ins. Co. 6 S.D. 424, 61 N.W. 439.

Where the pleadings and proof differ upon material matters, matters necessary to plead and prove as the basis of a valid judgment, such variance is fatal. Quarles v. Littlepage, 2 Hen. & M. 401, 3 Am. Dec. 637; Walsh v. Gilmore, 3 Harr. & J. 383, 6 Am. Dec. 502; Bellas v. Hays, 5 Serg. & R. 427, 9 Am. Dec. 385; Curley v. Dean, 4 Conn. 259, 10 Am. Dec. 140; Baldwin v. Munn, 2 Wend. 399, 20 Am. Dec. 627; Fowler v. Austin, 1 How. (Miss.) 156, 26 Am. Dec. 701; Pennsylvania, D. & M. Steam Nav. Co. v. Dandridge, 8 Gill & J. 248, 29 Am. Dec. 543; Didrell v. Miller, 8 Yerg. 476, 29 Am. Dec. 126; Avery v. Lewis, 10 Vt. 332, 33 Am. Dec. 203; Spangler v. Pugh, 21 Ill. 85, 74 Am. Dec. 77; Dougherty v. Matthews, 35 Mo. 520, 88 Am. Dec. 126; Mann v. Birchard, 40 Vt. 326, 94 Am. Dec. 398; St. Louis, A. & T. H. R. Co. v. Linder, 39 Ill. 433, 89 Am. Dec. 319.

W. O. Lowden and S.E. Ellsworth, for respondents.

Where a party voluntarily suffers judgment to be entered by default, he is in no position to ask relief at the hands of this court on appeal, on the ground that the judgment is not warranted by the complaint. The default could have been opened on motion, and suitable relief obtained in the lower court. Port v. Parfit, 4 Wash. 369, 30 P. 328; State ex rel. Shepherd v. Simpson, 69 Ore. 93, 137 P. 750, 138 P. 467.

Where an appeal is sought from a judgment and an order, the undertaking must refer to each of the appeals. If it recites but one, the appeal from the other is not effectual. Sucker State Drill Co. v. Brock, 18 N.D. 598, 120 N.W. 757.

The right of the plaintiff in an action against a public officer for malfeasance in office, to join with him the sureties upon his official bond, is so well settled that it needs no comment. Lee v. Charmley, 20 N.D. 570, 33 L.R.A.(N.S.) 275, 129 N.W. 448; Works v. Byrom, 22 Idaho 794, 128 P. 551; 35 Cyc. 1803; Rice v. Wood, 61 Ark. 442, 31 L.R.A. 609, 33 S.W. 636; Murray v. Evans, 25 Tex. Civ. App. 331, 60 S.W. 786.

"Where an exhibit attached to a complaint, and made a part of the pleading, negatives or contradicts allegations in the complaint founded on it, the exhibit will control. Johnson v. Kindred State Bank, 12 N.D. 336, 96 N.W. 588; First Nat. Bank v. Dakota F. & M. Ins. Co. 6 S.D. 424, 61 N.W. 439; Cranmer v. Kohn, 11 S.D. 245, 76 N.W. 937; Carson v. Hastings, 81 Neb. 681, 116 N.W. 673.

But where both construed together fairly apprise the defendants of plaintiff's cause or claim, it is sufficient. Fitch v. Appelegate, 24 Wash. 25, 64 P. 147; Long v. Shepard, 35 Okla. 489, 130 P. 131.

GOSS, J. BRUCE, J., BURKE, J., dissenting.

OPINION

GOSS, J.

The complaint is for a joint conversion by a sheriff and another defendant. The sheriff's bondsmen on his official bond are also joined as defendants. To the complaint a demurrer was interposed and overruled. The issues of law thus presented are first for consideration.

After describing the property and stating its value on September 19, 1910, and averring its ownership as in one Olson, the complaint alleges, viz.:

"II.

"That prior to said 19th day of September, A. D. 1910, the defendant Frank C. Davies had been duly elected sheriff in and for the county of Eddy and state of North Dakota, and on the 4th day of January, A. D. 1909, filed his official bond duly approved by the board of county commissioners of said county, with the county auditor of said county, with the defendants H. Peoples, Peter Prader, and James G. Daily, as his sureties thereon. A duly certified copy of which bond is hereto annexed and made a part of this complaint and marked exhibit 'A.' That the said Frank C. Davies then duly qualified as and became sheriff in and for said county, and at the time hereinafter mentioned was acting sheriff in and for said county.

"III.

"That on or about the 19th day of September, A. D. 1910, the defendant F. R. Cruden and the defendant Frank C. Davies by virtue and under color of his office aforesaid, without the consent of the said Oscar Olson and without leave, license, or authority from him, forcibly and unlawfully seized upon said personal property all and singular, and took the same from the possession of the said Oscar Olson, and have unlawfully converted and appropriated said personal property all and singular in their own use and in derogation of the rights of said Oscar Olson and to his damage in the sum of seven hundred dollars ($ 700).

"IV.

"That by reason of said unlawful seizure and conversion of the said above-described personal property by the said defendants F. R. Cruden and Frank C. Davies, the said Oscar Olson has been put to trouble, inconvenience, costs, and expense and has been damaged thereby in the sum of five hundred dollars ($ 500).

"V.

"That prior to the commencement of this action the said Oscar Olson duly sold, assigned, and transferred to this plaintiff, Steven Allen, all his rights, title, claim, and interest in and to the said property, or his right to damages therefor and the value thereof, by reason of the unlawful taking, detention, and conversion thereof by the said defendants F. R. Cruden and Frank C. Davies, and which said assignment was for a valuable consideration, and that plaintiff is now the owner and holder of said claim.

"VI.

"That plaintiff has demanded and caused to be demanded from said defendants F. R. Cruden and Frank C. Davies, the return to him of said property seized and taken by said defendants as aforesaid, but that the said demand has been by the said defendants refused, and the said personal property all and singular has been at all times since said taking and now is detained and withheld by said defendants and by them converted and appropriated as aforesaid."

The exhibit A referred to "as hereto annexed and made a part of this complaint" is the official bond, in statutory form and amount, of the sheriff, with defendants Peoples, Prader, and Daily as sureties thereon. Attached thereto is the oath of office taken by Davies, as sheriff, together with indorsements showing the filing of said official bond and oath with the county auditor. The grounds of demurrer taken are (1) improper joinder of causes of action, and (2) insufficiency of facts stated to constitute a cause of action.

Beyond controversy the complaint states a cause of action in conversion against the sheriff, Davies. Lee v Charmley, 20 N.D. 570, 33 L.R.A.(N.S.) 275, 129 N.W. 448; Welter v. Jacobson, 7 N.D. 32, 66 Am. St. Rep. 632, 73 N.W. 65. And stating a cause of action against that official, one is charged against the bondsman if a breach of the official bond is disclosed, and said sureties may be joined with the principal in the same action. Lee v. Charmley, 20 N.D. 570, 30 L.R.A. (N.S.) 275, 129 N.W. 448; Stark County v. Mischel, 33 N.D. 432, 156 N.W. 931. As to the sheriff a cause of action...