Bechthold v. O. F. P. Inv. Co.

• Decision Date: 28 April 1936
• Citation: 266 N.W. 915,221 Wis. 303
• Parties: BECHTHOLD v. O. F. P. INV. CO. ET AL.
• Court: Wisconsin Supreme Court

221 Wis. 303

266 N.W. 915

BECHTHOLD

v.O. F. P. INV. CO. ET AL.

Supreme Court of Wisconsin.

April 28, 1936.

Appeal from an order of the Circuit Court for Milwaukee County; John C. Kleczka, Judge.

Affirmed.

Action brought by the plaintiff, Walter Bechthold, against the defendants, Otto Priebe, Antonia Priebe, and O. F. P. Investment Company, a corporation, to recover the amount owing on three bonds secured by a mortgage on real estate. The defendants Priebe defaulted, and the defendant corporation filed a demurrer which the court overruled. The corporation appealed from that ruling.

Orth & Orth and Charles A. Riedl, all of Milwaukee, for appellant.

Bitker, Tierney & Puchner, of Milwaukee, for respondent.

FRITZ, Justice.

Plaintiff alleged in his complaint that he was the owner of bonds totaling $2,000, executed by the defendants Otto and Antonia Priebe, which were secured by a trust mortgage on certain real estate; and that the defendants defaulted in paying the principal and interest owing on the bonds at the maturity thereof. Plaintiff further alleged that the defendant corporation, O. F. P. Investment Company, was organized by the defendants Otto and Antonia Priebe for the purpose of being the repository of the title of their real estate; that they subscribed for stock of that corporation and, in consideration therefor, assigned and conveyed the mortgaged real estate to the corporation with the agreement and understanding that it assume all the liabilities of the Priebes on the bonds; and that the corporation is, in truth and fact, Otto and Antonia Priebe. Plaintiff's sole purpose in this action is to obtain relief in but one respect, i. e., recover but the one and same demand for $2,000, for which the Priebes and the corporation are severally liable to him, although their respective liability is based in part upon different instruments. The corporation demurred on the grounds that several causes of action were improperly united; and that the complaint did not state sufficient facts to constitute a cause of action.

The corporation on its appeal from the order overruling its demurrer, in so far as it was based on the ground that several causes of action were improperly united, contends that the complaint states two causes of action, jumbled together and not separately stated; that one cause of action is against the Priebes upon the bonds, while the other is against the defendant corporation upon its assumption of payment of the bonds by a later transaction; that although the two transactions are for payment of the same indebtedness, they are separate and distinct, and do not affect all the parties to the action; and that therefore they cannot be properly joined, under section 263.04, Stats.

[1][2][3] In so far as those contentions are concerned, the court rightly overruled the demurrer in view of the provision in section 260.17, Stats., that: “Persons severally liable * * * for the same demand and, without reckoning offsets or counterclaims, in the same amount, although upon different obligations or instruments, may all or any of them be included in the same action at the option of the...