Fourchier v. McNeil Const. Co., 3609

• Decision Date: 08 February 1951
• Docket Number: No. 3609,3609
• Parties: FOURCHIER et al. v. McNEIL CONST. Co. et al.
• Court: Nevada Supreme Court

Page 429

227 P.2d 429

68 Nev. 109

FOURCHIER et al. v. McNEIL CONST. Co. et al.

No. 3609.

Supreme Court of Nevada.

Feb. 8, 1951.

Ralli & Rudiak, Las Vegas, Entenza & Gramer, Beverly Hills Cal., and Vincent J. Blumberg, Los Angeles, Cal. (Marvin Wellins and Sidney R. Troxell, Los Angeles, Cal., of counsel), for appellant.

Lewis, Hawkins & Cannon, Las Vegas, Bodkin, Breslin & Luddy and Leonard S. Janofsky, Los Angeles, Cal., for respondent McNeil Const. Co.

Thatcher, Woodburn & Forman, Reno, for respondent Basic Magnesium Inc.

BADT, Chief Justice.

The district court sustained motions of the defendants to dismiss the amended complaint as to thirty-nine nonresident plaintiffs for their failure to comply with defendants' demands for security for costs. The propriety of such action is attacked in this appeal by the thirty-nine nonresident plaintiffs. The fortieth and only additional plaintiff is a resident of Nevada and as to him the action was not dismissed.

Appellants contend (1) that by reason of the residence within the state of one plaintiff no cost bond could be required of the thirty-nine nonresident plaintiffs; (2) that even though bond might be required, the one $300 cash bond posted in response to the demand was sufficient; (3) that it was an abuse of discretion for the district court to dismiss the action as to the thirty-nine nonresident plaintiffs without giving them opportunity to file such bond as the court might require in the premises; and (4) that in any event the defendants had never made a specific and clear demand for a $300 cost bond from each nonresident plaintiff.

Plaintiffs filed their original complaint June 30, 1947 and summons was duly issued and served. Defendant Basic Magnesium Incorporated, a Nevada corporation, which we shall refer to as Basic, appeared by demurrer and at the same time served its demand for security for costs. McNeil Construction Company, a California corporation, which we shall refer to as McNeil, also demanded security for costs and demurred. Within thirty days after the demand, the plaintiffs posted a cash bond for costs in the sum of $300.

On June 24, 1949, approximately two years after the filing of the original complaint, plaintiffs filed a first amended complaint containing substantially all of the allegations of the original complaint, with its three pleaded causes of action for each of the forty plaintiffs, and added three additional and separate causes of action on behalf of each plaintiff, thus alleging a total of 240 separate causes of action, being six causes of action on behalf of each plaintiff. The prayer of the amended complaint is for judgment as described in the forty-one numbered paragraphs of such prayer. Each of the first forty paragraphs prays for judgment against the defendants in a specific sum in favor of each separate plaintiff, together with interest and together with punitive damages in a sum equal to the principal demand. These forty separate demands for judgment range from the lowest in the sum of $2,127.60 to the highest in the sum of $11,026.32, and aggregate, without interest, costs or punitive damages, over $220,000. Paragraph forty-one of the prayer is divided into sub-paragraphs (a) to (i), inclusive, constituting nine separate items. These seek a declaration and determination as to the rights of each plaintiff with respect to the defendants by reason of the terms of an agreement dated September 3, 1941 between McNeil and Basic, to the effect that each of the plaintiffs was an express beneficiary of said contract and as such was entitled to receive compensation at one and one half times the basic rate for all overtime served in excess of eight hours a day, and compensation at the basic rate of pay for all hours worked, including eight hours per day of any day including Saturdays and Sundays; (b) that the defendants are jointly and severally liable for these items; (c) that under such contract Basic is liable as an undisclosed principal; (d) that McNeil is liable as an undisclosed agent; (g) that the forty-hour week should be used in computing the basic rate; (h) that each plaintiff has worked the number of hours as claimed by him. Other paragraphs of the prayer are largely explanatory or repetitive. The prayer also asks for an accounting, costs and further relief. The amended complaint contains 160 typewritten pages, besides twenty pages of exhibits.

Taking the causes of action pleaded on behalf of the first named plaintiff as an example, we find in his first cause of action four paragraphs pleading matters of inducement. The fourth reads as follows: 'That the plaintiffs herein are joined in this action for the reason that they have, respectively, causes of action which are similar and which arise out of transactions connected with the same subject of action, to wit, work and labor performed upon the same project, and which involve questions of law and fact common to all of the plaintiffs and to their respective causes of action; that the joinder of plaintiffs' causes of action herein will also avoid a multiplicity of suits.' It is then alleged that within four years last past such plaintiff performed work and labor for the defendants at their special instance and request, for which they agreed to pay a specified sum per week for a forty-four-hour week, plus time and a half for overtime; that plaintiff performed 1376 hours of overtime labor by reason whereof the defendants became indebted to him in the sum of $6,777.12, no part of which has been paid, though demanded. The second cause of action of such plaintiff alleges an indebtedness for the reasonable value of services in said sum. The third cause of action of such plaintiff alleges that within six years last past he entered into a written contract of employment with defendants at a specified rate per week for a forty-four week, plus a reasonable value for overtime, and that he performed 1376 hours of overtime of the reasonable value of said sum of $6,777.12. His 4th, 5th and 6th causes of action allege his employment as a general foreman and superintendent under an oral contract with McNeil made on or about December 16, 1941; that on September 3, 1941 McNeil and Basic entered into a written contract for the express benefit of the plaintiff, which contract is annexed as an exhibit; that under such contract McNeil was to permit no laborer or mechanic to work over eight hours a day, except for compensation at not less than time and a half for overtime and should pay straight time compensation for all hours worked to and including eight hours a day; that upon completion of constuction Basic would assume and become liable for all obligations of McNeil under the contract, including labor; that such contract has been fully performed except for the payment of the money due plaintiff; that by reason of such provisions in the contract there is due plaintiff $9,913.20--his basic rate being $3.38 per hour for part of the term and $3.75 per hour for the remainder; that plaintiff was not informed of said contract between Basic and McNeil until August 26, 1948 and that until such date MeNeil 'fraudulently concealed from plaintiff, with intent to deprive him of his rights thereunder, all information concerning said contract.' Such plaintiff demands judgment for $9,913.20, being $5,979.60 overtime, plus $3,933.60 straight time.

This is typical of the six causes of action pleaded on the part of each of the forty plaintiffs. Defendants demurred separately upon the grounds, among others, of misjoinder of parties plaintiff and misjoinder of causes of action, such grounds of demurrer being specifically permitted under our practice act. The court order granting the motion to dismiss as to the thirty nine nonresident plaintiffs was made before argument or submission of either of the demurrers, and the points thus raised in the demurrers were never submitted to or passed upon by the district court.

The demand for security for costs was made under § 8936 N.C.L., as amended, Stats. 1939, c. 26, p. 20, reading as follows: 'When a plaintiff in an action resides out of the state, or is a foreign corporation, security for the costs and charges which may be awarded against such plaintiff may be required by the defendant, by the filing and service on plaintiff of a written demand therefor within the time limited for answering the complaint. When so required, all proceedings in the action shall be stayed until an undertaking, executed by two or more persons, be filed with the clerk, to the effect that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action, not exceeding the sum of three hundred dollars; or in lieu of said undertaking, the plaintiff may deposit three hundred dollars, lawful money, with the clerk of the court, subject to the same conditions as required for the undertaking. A new or an additional undertaking may be ordered by the court or judge upon proof that the original undertaking is insufficient security, and proceedings in the action stayed until such new or additional undertaking be executed and filed.'

The dismissal was ordered, on motions in which both defendants joined, under § 8938 N.C.L., reading as follows: 'After the lapse of thirty days from the service of notice that security is required, or of an order for new or additional security, upon proof thereof, and that no undertaking as required has been filed, the court or judge may order the action to be dismissed.'

(1) We first consider the fourth point raised by appellants, namely, that defendants had never made a specific and clear demand for a $300 cost bond from each plaintiff. The demand is directed to each of the plaintiffs and 'demands and requires security on the part of each plaintiff above named for the costs and charges which may be awarded against each of said plaintiffs in this action in accordance with the statute in such ca...