Capital Nat. Bank of Olympia v. Johns

• Decision Date: 28 November 1932
• Docket Number: 24152.
• Citation: Capital Nat. Bank of Olympia v. Johns, 16 P.2d 452, 170 Wash. 250 (Wash. 1932)
• Parties: CAPITAL NAT. BANK OF OLYMPIA v. JOHNS et al.
• Court: Washington Supreme Court

16 P.2d 452

170 Wash. 250

CAPITAL NAT. BANK OF OLYMPIA v. JOHNS et al.

No. 24152.

Supreme Court of Washington

November 28, 1932

Department 1.

Appeal from Superior Court, Thurston County; John M. Wilson, Judge.

Action by the Capital National Bank of Olympia, a corporation against Leona M. Johns and others.From an adverse judgment the named defendant appeals.

Affirmed.

Frank C. Owings, of Olympia, for appellant.

Thos L. O'Leary, of Olympia, for respondent.

HOLCOMB J.

This appeal is by the divorced wife of defendantJ. L. Johns from that part of the judgment entered below against her in the sums set forth in the judgment and making the same a lien against all community property owned by her and her former husband prior to their divorce.

There is no dispute as to any of the facts.The controversy here is as to the application of the law to the facts.

DefendantJ. L. Johns and appellant were married September 7, 1912, and were husband and wife until October 27, 1930, on which date a preliminary decree of divorce was entered in which appellant was granted a divorce from J. L. Johns and a division of their property interests made by them on October 16, 1930 was approved and confirmed.The final decree of divorce confirming the interlocutory decree was duly entered in the divorce action on April 28, 1931.By the terms of the property settlement certain property, specifically described, was set over to appellant as her separate property, and the remainder of the property belonging to the community was set over to the husband.Part of the property set over to the husband were shares of stock of Modern Utilities Company theretofore owned by them as a community.

The complaint in this case states two causes of action, the first being upon a promissory note dated October 27, 1930, alleging a balance due on the principal of $350 and interest as provided in the note.The second is upon a promissory note for a balance due of $5,888.52 principal and interest as stipulated therein.There is further pleaded with both causes of action a writing, guaranteeing any and all indebtedness up to $12,500 owing by Modern Utilities Company to respondent, dated May 15, 1929, signed by certain others and J. L. Johns.All of the signers of the writing so pleaded were stockholders in the company at the time of its execution, and the stock of J. L. Johns was then community property of himself and appellant.Respondent had full knowledge and notice of the property settlement when executed and of the preliminary and final decrees of divorce on the dates they were entered.

Appellant first learned, shortly Before the institution of this action and in December, 1931, that J. L. Johns had executed the written guaranty while they were still husband and wife.On May 15, 1929, when the guaranty was made, the indebtedness of Modern Utilities Company to respondent was $734.

That was increased on May 21, 1929, to $10,000, and on June 20, 1929, to $12,500.Thereafter, upon maturity and nonpayment in full of the notes, various renewals for varying amounts were made by the makers, namely: On July 22, 1929, August 21, 1929, September 19, 1929, October 18, 1929, November 19, 1929, December 20, 1929, January 18, 1930, February 17, 1930, March 17, 1930, April 15, 1930, May 14, 1930, June 13, 1930, July 15, 1930, August 11, 1930, September 11, 1930, October 11, 1930, and on November 10, 1930.The renewal note given November 10, 1930, one of the two notes sued on herein, was for $8,600.The other note sued on was originally in the sum of $2,500, evidenced by a note dated April 29, 1930.On May 1, 1930, there was another note for $1,400.On May 29, 1930, these two notes were combined in the sum of $3,900, which obligation was renewed on June 28, 1930, July 28, 1930, August 28, 1930, September 27, 1930, and October 27, 1930.In all instances the new notes were marked 'Renewal.'

Appellant first attacked the complaint by motion and demurrer.The motion was to require respondent, among other things, to elect whether it would sue upon the promissory notes described in its two causes of action, or would sue upon the instrument of guaranty; and in the event of the denial of the motion that respondent be required to state separately its causes of action on the notes and upon the instrument of guaranty.The demurrer was upon the grounds that there was a defect of partiesdefendant; that several causes of action had been improperly united; that the alleged causes of action stated in the complaint did not state facts sufficient to constitute causes of action.The motion was denied and the demurrer overruled by the trial court.

It is first contended by appellant that the court erred in overruling her demurrer for the reason that an action on each note could not properly be joined in an action on the written guaranty.

A number of authorities from outside jurisdictions are cited by appellant which we do not consider apt since this case is controlled by our Rule 2 of Pleading, Procedure and Practice, 140 Wash. xxxv, and our decisions.

Appellant contends that the rule in question is not intended to abrogate Rem.Comp. Stat. § 296, providing that causes of action so united must affect all the parties to the action.That part of the rule, supra, material to this matter reads: 'No action or proceeding shall be defeated by the nonjoinder or misjoinder of parties.New parties may be added or substituted and parties misjoined may be dropped by order of the court at any stage of the cause as the ends of justice may require.'

While the rule does not purport to abrogate the statute, its purpose was to enable parties to be brought in that were in any wise affected by the controversy to avoid a multiplicity of suits and to determine all subjects of the controversy, in so far as proper, in one action.

Nor was it error to deny the motion and overrule the demurrer, for reasons which we shall presently see.

The writing alleged by respondent and admitted by appellant to have been executed reads:

'Olympia, Wash., May 15, 1929

'For and in consideration of the sum of One Dollar to me in hand paid by the Capital National Bank of Olympia, the receipt of which is hereby acknowledged, and for other valuable consideration, the undersigned hereby jointly and severally guarantee unconditionally at all times payment of any and all indebtedness or liability, direct or contingent irrespective of its character, regularity, enforcibility or validity, now owing or which may hereafter be owing or become due from the Modern Utilities Company of Olympia, a Corporation, to the Capital National Bank of Olympia, its successors or assigns, to the extent of Twelve Thousand Five Hundred Dollars, ($12,500.00), whether or not such indebtedness or liability or any part thereof be otherwise guaranteed or secured, or whether additional guarantors be added hereto after delivery without notice to or the consent of the undersigned, and irrespective of any other circumstance; and upon the failure to pay promptly the full amount thereof when due, by acceleration or otherwise, by the said Modern Utilities Company of Olympia the undersigned jointly and severally promise to pay such indebtedness or liability on demand, together with interest thereon, and also all expense of every kind incurred for the collection thereof or in the enforcement of this agreement, and in case suit is instituted to enforce this agreement, or any claim arising thereunder, to pay such additional sum as the court shall adjudge reasonable as attorneys' fees in such suit, to the Capital National Bank of Olympia, or to the holder or holders of said indebtedness or liability, or any part thereof, the undersigned hereby waiving notice of the acceptance of this guaranty and of any and all

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