Beane v. Givens

• Decision Date: 18 January 1898
• Citation: 51 P. 987,5 Idaho 774
• Parties: BEANE v. GIVENS
• Court: Idaho Supreme Court

51 P. 987

5 Idaho 774

BEANE v. GIVENS

Supreme Court of Idaho

January 18, 1898

EQUITY-ALL PARTIES INTERESTED MUST BE BEFORE THE COURT.-In equitable actions the plaintiff should bring before the court all parties interested in and connected with the subject matter so that the questions involved and pertaining to the subject matter may be fully and forever settled.

MISJOINDER OF PARTIES-DEMURRER.-When B. brings suit on four causes of action, three being for personal services, and the fourth for the purpose of having a chattel mortgage executed by himself and wife on the separate property of the wife, declared fraudulent and void and fails to make his wife a party to the demurrer on the ground of misjoinder, or nonjoinder of parties should have been sustained.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Reversed and remanded, with instructions.

F. S Dietrich, for Appellant.

The contract alleged in the first cause of action is void as being against public policy. Defendant was a public officer and the claim is for "services" in "procuring a continuance" of defendant in a position of great public trust. However potent plaintiff's influence, as Democratic national committeeman for Idaho may have been, and however much it may have cost him, such influence is "not a commodity for which money can be demanded." (Elkhart Co. Lodge v. Crary, 98 Ind. 238, 49 Am Rep. 746; Oscanyan v. Arms Co., 103 U.S. 261; Gray v. Hook, 4 N.Y. 449; Providence Tool Co. v. Norris, 2 Wall. 45.) All such agreements "are void as against public policy, without reference to the question whether improper means are contemplated or used in their execution." (Pollock on Contracts, 279; Anson on Contracts, 175; Clark on Contracts, 415 et seq.; Lawton on Contracts, sec. 309; Mechem on Public Officers, sec. 350 et seq.; Houlton v. Dunn, 60 Minn. 26, 51 Am. St. Rep. 493, 61 N.W. 898, 30 L. R. A. 737, and note; Bryan v. Reynolds, 5 Wis. 200, 68 Am. Dec. 55; Basket v. Moss, 115 N.C. 448, 44 Am. St. Rep. 463, 20 S.E. 733; Mechem on Public Officers, sec. 360, and notes; Clippinger v. Hepbaugh, 5 Watts & S. 315, 40 Am. Dec. 519; Mills v. Mills, 40 N.Y. 543, 100 Am. Dec. 535; 9 Ency. of Law, 903.) It is difficult to conceive on what theory the court could have overruled the demurrer in the respect in which it was sought to have Grace N. Beane brought in as a necessary party. She was one of the signers of the note and mortgage, and the mortgage embraced her separate property. She was the real party in interest. Plaintiff had no real interest in the relief sought by the fourth cause of action. The issues made thereby could not be determined without the presence of Grace N. Beane. By pursuing the course adopted by the court, the matter became res adjudicata only as to the defendant, not as to either the plaintiff or said Grace N. Beane, especially the latter. The grand principle which underlies the doctrine of equity in relation to parties is that every judicial controversy should, if possible, be ended in one litigation; that the decree pronounced in the single suit should determine all right, interests and claims, should ascertain and define all conflicting relations and should forever settle all questions pertaining to the subject matter. (Pomeroy's Code Remedies, par. 247; Caldwell v. Taggart, 4 Pet. 190, 7 L. ed. 828.)

Reeves & Terrell, J. H. Forney and E. E. Chalmers, for Respondent.

The record herein does not disclose a final judgment from which an appeal lies, and the appeal should therefore be dismissed. (Freeman on Judgments, 3 ed., secs. 16, 30, 34; 3 Estee on Pleadings, sec. 4945, and citations; Durant v. Comegys, 3 Idaho 67, 35 Am. St. Rep. 267, 26 P. 755; Martin v. Zellerbach, 38 Cal. 320, 99 Am. Dec. 365; Adams v. McPherson, 3 Idaho 117, 27 P. 577; Gibbons v. Ogdon, 6 Wheat. (U.S.) 448; 5 L. ed. 302, and note; Lea v. Kelly, 15 Pet. (U.S.) 213, 10 L. ed. 715, and note; McCollum v. Eager, 2 How. (U.S.) 61, 2 L. ed. 179; Thomas v. Wooldridge, 23 Wall. 283, 23 L. ed. 135, and note.) All those whose interests are to be affected by legislation may, both morally and legally for the protection or advancement of their interests, use all means of persuasion which do not come too near to bribery or corruption; but the promise of any personal advantage to a legislator is open to this objection and therefore void. (2 Parsons on Contracts, 7th ed., bot. p. 895, star p. 755; Chesebrough v. Conover, 140 N.Y. 382, 35 N.E. 633; Houlton v. Nichol, 93 Wis. 393, 57 Am. St. Rep. 928, 67 N.W. 715; Barber Asphalt Pav. Co. v. Botsford, 56 Kan. 532, 44 P. 3; Miles v. Thorne, 38 Cal. 335, 99 Am. Dec. 384, and note.) A judgment or order will not be reversed for errors which were not injurious to the appellant. (Hayne on New Trial and Appeal, sec. 286, and cases cited; United States v. Alexander, 2 Idaho 386, 17 P. 746; Hawkins v. Pocatello Water Co., 3 Idaho 766, 35 P. 711; Emeric v. Alvarado, 64 Cal. 529, 2 P. 418; Quimby v. Butler, (Cal.), 5 P. 613; Merced Co. v. Hicks, 67 Cal. 108, 7 P. 179; Strong v. Kamm, 13 Or. 172, 9 P. 331; Dougherty v. Coffin, 69 Cal. 454, 10 P. 672; Arnaz v. Gassen, 73 Cal. 618, 15 P. 316.) The decision of the trial court upon the fourth cause of action is not a final judgment, and the issues thereon are not res adjudicata for that the questions of law arising thereon have not been finally determined by judicial action. (Freeman on Judgments, 3d ed., sec. 251; Bigelow on Estoppel, 3d ed., pp. 57, 610, note, and cases cited; Durant v. Comegys, 3 Idaho 67, 35 Am. St. Rep. 267, 26 P. 755; Gray v. Noon, 66 Cal. 186, 4 P. 1191; Phelps v. Harris, 101 U.S. 370, 25 L. ed. 855.)

SULLIVAN, C. J. Huston and Quarles, JJ., concur.

OPINION

SULLIVAN, C. J.

The complaint contains four alleged causes of action. The first cause is for services alleged to have been rendered at the special instance and request of the defendant in the procuring a continuance of the said defendant in his position as superintendent of the state insane asylum, and alleges that such services were reasonably worth $ 250. And for a second cause of action it is alleged that plaintiff rendered services for defendant in and about the assignment of a certain desert land entry, and that such services were worth $ 100. And for a third cause of action it is alleged that defendant became indebted to plaintiff for services performed "during the months of July and August, 1895," in and about procuring from the United States Indian department a permit for the defendant to obtain and procure from the Fort Hall Indian reservation rock for building purposes, and that such services were reasonably worth the sum of $ 150. And it is further alleged that during the time said services were rendered the defendant advanced to plaintiff certain sums of money, which, together with interest accrued thereon, aggregated the sum of $ 345. The fourth cause of action alleges:

"That on the twentieth day of March, 1895, the defendant fraudulently induced and procured the plaintiff and his wife Grace N. Beane, to make, execute and deliver to him a certain chattel mortgage on certain personal property which was the separate property of plaintiff's said wife. That said mortgage was made and given at the special instance and request of defendant; and that, at the time said mortgage was given, neither plaintiff nor his wife was indebted to the defendant in any sum whatever; and that at the time said mortgage was given, and immediately thereafter, the said note and mortgage were given as a memorandum showing the amount of money advanced and paid to the plaintiff for his benefit; and that said note and mortgage were intended for no other purpose; and that the defendant never at any time until very recently claimed or asserted any claim against this plaintiff on account of the execution and delivery of said mortgage. That some time in the year of 1895 the defendant left the state of Idaho for the state of Maryland, and resides at the city of Baltimore. That since he left this state this plaintiff is informed and believes, and upon his information and belief alleges, that the defendant is asserting a claim against the plaintiff at this time on account of the existence of said note and mortgage above complained of in the sum of about $ 345, with interest thereon from the twentieth day of December, 1895, when in truth and in fact the plaintiff owes the defendant nothing on account of said note and mortgage. Plaintiff says that said note and mortgage were procured from him by fraud and deceit, practiced at the time by the said defendant by then and there promising and assuring the plaintiff that he would not make any claim against the plaintiff by reason thereof, and that the said note and mortgage would be only a protection to the plaintiff, and that, when a settlement would occur between plaintiff and defendant, the amount of said note and mortgage would be deducted from the claim held by plaintiff and set out in the three foregoing causes of action; and that the said note and mortgage should be held, used, and claimed by the defendant for such purpose, and none other. That plaintiff is informed and believes, and upon such information and belief avers, that in violation of said agreement and understanding, and for the purpose of cheating and defrauding this plaintiff, the defendant has placed said note and mortgage in the hands of F. S. Dietrich, an attorney of this court, at Blackfoot, Idaho with instructions to compel the payment of said note and mortgage, and, if not paid promptly, to proceed by affidavit and notice to foreclose said mortgage in the manner provided by law; and that he is now threatening to bring such foreclosure proceedings, and, if not restrained by some order of this court, the said de...