Farney v. Hamilton County

• Decision Date: 04 May 1898
• Docket Number: 8953
• Citation: 75 N.W. 44,54 Neb. 797
• Parties: PETER FARNEY v. HAMILTON COUNTY
• Court: Nebraska Supreme Court

75 N.W. 44

54 Neb. 797

PETER FARNEY v. HAMILTON COUNTY

No. 8953

Supreme Court of Nebraska

May 4, 1898

ERROR from the district court of Hamilton county. Tried below before SEDGWICK, J. Proceeding in error dismissed.

Motion DISMISSED.

Whitmore & Stanley and Matt Miller, for plaintiff in error.

A. W Agee, contra.

OPINION

NORVAL, J.

This suit was brought by the county of Hamilton against Peter Farney as principal and forty-eight others as sureties upon the official bond of said Farney as treasurer of said county. Upon the issues joined by the pleadings there was a trial to a jury, which resulted in a joint verdict against all the defendants in the sum of $ 1,128.89. The defendants filed a joint motion for a new trial, which the court overruled, and on May 4, 1896, judgment was rendered upon the verdict, in form joint against all the defendants, for the amount so found by the jury. To reverse this judgment the defendant Peter Farney alone prosecuted a petition in error to this court, he being the only plaintiff in error named; and his co-defendants were not made parties to the proceeding in this court, nor are their names mentioned in the petition in error. On March 11, 1898, the county filed a motion to dismiss the petition in error on the ground of defect of parties, since more than one year has elapsed after the rendition of the judgment, and none of the co-defendants of Farney have been made parties in this court. The motion has been submitted for consideration.

It is well settled that to obtain a review of a joint judgment by petition in error all persons shown by the record to be substantially interested must be made parties to the proceeding, as plaintiffs or defendants. (Wolf v Murphy, 21 Neb. 472, 32 N.W. 303; Hendrickson v Sullivan, 28 Neb. 790, 44 N.W. 1135; Andres v Kridler, 42 Neb. 784, 60 N.W. 1014; Polk v. Covell, 43 Neb. 884, 62 N.W. 240; Kuhl v. Pierce County, 44 Neb. 584, 62 N.W. 1066.) The doctrine just stated is not assailed by counsel for plaintiff herein as being unsound, but it is argued that the rule cannot be invoked in the case in hand for reasons which will be hereafter stated.

It is insisted that the judgment here sought to be reviewed is not joint, but there is a special controversy between the county and Farney in which the other defendants below are not interested; hence it is unnecessary to bring them into this court. This argument is based upon the fact that the trial court found that Farney was the principal debtor and that his co-defendants were liable as sureties merely, and it was there determined that the judgment should be enforced against the principal first, and in the event the amount could not be collected from him, then from the sureties. This did not constitute separate and distinct judgments, one against the principal debtor, and the other against his sureties. The judgment as pronounced is joint in form and legal effect against all the defendants, in favor of the county, with an adjudication in accordance with the provisions of section 511 of the Code of Civil...