Archer v. Musick, No. 32067.

• Court: Supreme Court of Nebraska
• Writing for the Court: YEAGER
• Citation: 147 Neb. 344,23 N.W.2d 323
• Parties: ARCHER v. MUSICK.
• Docket Number: No. 32067.
• Decision Date: 07 June 1946

147 Neb. 344
23 N.W.2d 323

ARCHER
v.
MUSICK.

No. 32067.

Supreme Court of Nebraska.

June 7, 1946.

Appeal from District Court, Box Butte County; Meyer, Judge.

Action by Frederick H. Archer against G. Meredith Musick, doing business under the firm name and style of G. Meredith Musick, Architect Engineer, to recover overtime wages under provisions of the Fair Labor Standards Act of 1938, §§ 1-19, 29 U.S.C.A. §§ 201-219. From order sustaining demurrer and overruling motion to separately docket 39 causes of action alleged by plaintiff as assignee of 39 other persons, and from judgment of dismissal, the plaintiff appeals.

Reversed and remanded with directions.

[23 N.W.2d 324]

Syllabus by the Court.

1. An action in the state court for recovery under a United States statute is controlled by the procedural rules of the state.

2. Class action is permissible under the statutes of this state when the question is one of common or general interest of many persons, or when parties are very numerous, and it may be impracticable to bring them all before the court.

3. An action may not be maintained as a class action by a plaintiff in behalf of himself and others unless he has power as a member of the class to satisfy a judgment in behalf of all members of the class.

4. A chose in action assigned for the purpose of collection may be sued in the name of the assignee if the assignee furnishes security for costs.

5. One who becomes the owner of a chose in action by assignment may, as the real party in interest, sue thereon in his own name without naming the assignor.

6. An assignee of a chose in action assigned for collection is a proper party plaintiff but he is not the real party in interest as to the cause of action.

7. The joinder by an assignee of several unrelated causes of action in a single petition is vulnerable to a demurrer on the ground of misjoinder of causes of action.

8. A demurrer on the ground of defect of parties is available where there is a joinder of unnecessary parties as well as where there is a nonjoinder of necessary parties.

9. The holding in Salisbury v. Berry Motor Co., 122 Neb. 605, 241 N.W. 86, that ‘A defect of parties means an absence of necessary parties and the objection that there are too many parties cannot be reached by a demurrer on this ground,’ is overruled.

10. Misjoinder of parties has reference to parties plaintiff or defendant to a particular cause of action.

11. Where there has been a misjoinder of causes of action but the parties to each cause are proper within the meaning of the statutes there is no defect of parties.

12. When there has been a misjoinder of causes of action the court, on motion of

[23 N.W.2d 325]

plaintiff, is required to grant separate docketing of the several causes of action.

CHAPPELL, CARTER, and WENKE, JJ., dissenting.

S. L. O'Brien, of Alliance, and Charles A. Fisher, of Chadron, for appellant.

Mitchell & Gantz and Donald E. Williams, all of Alliance, and Bert E. Church, of Wellington, Kan., for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

YEAGER, Justice.

This is an action by Frederick H. Archer, plaintiff and appellant, against G. Meredith Musick, doing business as G. Meredith Musick, Architect Engineer, defendant and appellee. The action is in 40 causes of action. The first cause of action is for the recovery of overtime pay, penalty, and attorney's fees claimed to be due plaintiff on account of service performed by him in excess of 40 hours per week under a contract of hiring which was controlled by the provisions of Title 29, sections 201 to 219, inclusive, U.S.C.A., being what is known as the Fair Labor Standards Act of 1938, and for costs. The other 39 causes of action are by plaintiff as assignee of 39 other persons having like claims.

A demurrer was filed to the petition on the ground that there was a misjoinder of causes of action and a defect of parties. The demurrer was sustained as to all except the first cause of action. Motion was filed by plaintiff requesting leave to docket the 39 causes of action as separate actions. The motion was overruled and the leave requested was denied, whereupon the 39 causes of action were by the court dismissed.

From the orders sustaining the demurrer and overruling the motion to separately docket and the judgment of dismissal, the plaintiff has appealed.

The stated grounds for reversal are (1) that the court erred in sustaining defendant's demurrer on the ground of misjoinder of causes of action, and of parties plaintiff, and (2) that the court erred in refusing to permit plaintiff on motion to amend and file several petitions for each of his causes of action and to separately docket the same.

A summary of the allegations of the petition which are important in arriving at a decision upon the questions involved in this appeal is the following: The defendant was an architect engineer engaged in the production of goods for commerce at the Alliance Air Support Transport Glider Station in Box Butte County, Nebraska. On or about May 26, 1942, plaintiff was employed by defendant as a guard at the station at an annual rate of pay of $1,620 per annum for 2,000 working hours or a weekly rate of $30.75 for a 40-hour week. The relationship was controlled by the provisions of the aforementioned Fair Labor Standards Act. The plaintiff worked 192 hours overtime during the period of his employment. For this overtime he was entitled, under the Fair Labor Standards Act, to receive for the overtime $223.44, or one and one-half times the rate of pay for regular time under the contract of employment, and also an equal sum as a penalty, or a total of $446.88, together with a reasonable attorney's fee to be taxed as costs. The other 39 causes of action are drawn on the same theory and are each for overtime for other employees engaged in similar employment to that of plaintiff. The statements, as finally presented with amendments, each contain a recital of assignment to plaintiff for the purpose of suit. Plaintiff by virtue of the

[23 N.W.2d 326]

assignments instituted suit on the 39 causes and joined them with his own, which is the first cause of action.

It was this joinder of the 39 causes of action with the first that the district court held amounted to a defect of parties and a misjoinder of causes of action.

Plaintiff insists that there was neither defect of parties nor misjoinder of causes of action. The first ground for this contention is that this form of action and this joinder of causes is specifically authorized by the Fair Labor Standards Act.

That action in this form and substance is authorized by the Act is beyond question. The authority is contained in Title 29, subsection (b), section 216, U.S.C.A., as follows:

‘Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.’

Appellee contends however that this is not controlling where the action for recovery is in a state court; that when the action is in the state court the procedure of the state court with regard to joinder of parties and causes of action is controlling; and that the type of joinder here is not permissible under Nebraska law pertaining to procedure.

We have found no difficulty in arriving at the conclusion that an action in a state court for recovery under a United States statute is controlled by the procedural rules of the state. This conclusion is supported by an abundance of authority. In Rockwood v. Crown Laundry Co., 352 Mo. 561, 178 S.W.2d 440, 442, the rule is stated as follows: ‘Since plaintiff seeks relief in a state court, the jurisdiction of the state court must be invoked in conformity with local law and practices and even though the right sought to be enforced arises under federal law, the state rules of practice and procedure govern as to all matters pertaining to the remedy.’ This statement follows a previous pronouncement of the rule and an exhaustive explanation of the reasons therefor in Minneapolis & S. L. R. Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961, L.R.A.1917A, 86, Ann.Cas.1916E, 505.

The second contention of plaintiff is that the type of joinder here is permissible under the laws of Nebraska. It is urged that this is a class action and as such is maintainable in the manner instituted and also that it is maintainable under statutes specially authorizing joinder of causes of action.

Class actions are permissible under the statutes of this state. The statute declaring the right provides as follows: ‘When the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.’ Sec. 25-319, R.S.1943.

The statute has never been construed but it has been applied in Folts v. Globe Life Ins. Co., 117 Neb. 723, 223 N.W. 797;Whaley v. Matthews, 134 Neb. 875, 280 N.W. 159;Clark v. Lincoln Liberty Life Ins. Co., 139 Neb. 65, 296 N.W. 449;May v. City of Kearney, 145 Neb. 475, 17 N.W.2d 448. It has been applied without reference in a number of other cases including Allen v. City of Omaha, 136 Neb. 620, 286 N.W. 916; and Wightman v. City of Wayne, 146 Neb. 944,...