Gardner v. Rumsey
| Decision Date | 15 March 1921 |
| Docket Number | 9932. |
| Parties | GARDNER ET AL. v. RUMSEY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In an action at law, two or more persons having separate causes of action against the same defendant, though arising out of the same transaction, cannot unite; nor can several plaintiffs in one complaint demand several distinct matters of relief; nor can they enforce joint and separate demands against the same defendant.
The statutes of Arkansas providing that, before any corporation shall commence business, the president and directors thereof shall file their articles of association, and also certificate, setting forth the purposes for which such corporation is formed, the amount of its capital stock, the amount actually paid in, and the names of its stockholders and the number of shares by each respectively owned, with the county clerk of the county in which the corporation is to have its principal place of business, etc., and providing further that, if the president, directors, or secretary of any such corporation shall intentionally neglect or refuse to comply with the provisions of this act, and to perform the duties therein required of them respectively, such of them as so neglect or refuse shall be jointly and severally liable in an action for all the debts of such corporation contracted during the period of any such neglect or refusal held: First, that the liability against the officer failing to comply with the terms of the statute is in effect penal; second, that an action for the liability created by reason of the false certificate filed by such officer cannot be maintained in this state.
Appeal from District Court, Oklahoma County; Edward Dewes Oldfield Judge.
Action by A. L. Gardner, doing business under the firm name of A. L Gardner & Co., and others, against Joseph F. Rumsey. From a judgment sustaining a demurrer to plaintiffs' petition plaintiffs appeal. Affirmed.
Lemuel H. Doty, of Wichita Falls, Tex., and James B. McDonough, of Ft. Smith, Ark., for plaintiffs in error.
B. O. Young and Ames, Chambers, Lowe & Richardson, all of Oklahoma City, for defendant in error.
This is an appeal from a judgment of the district court of Oklahoma county sustaining a demurrer by the defendant to the plaintiffs' petition. The causes of action set forth in the petition are based upon the statute of the state of Arkansas creating a liability in favor of creditors against officers of an Arkansas corporation who make a false certificate.
By virtue of the statute, the organizers of a corporation in Arkansas are required to state, under oath, the amount of capital stock actually paid in. The directors and organizers are required to make affidavit to the truthfulness of the certificate and report, and if any officer of the corporation makes a false affidavit as to the amount paid in, said person making the false affidavit is liable to any creditor of the corporation for the amount of the debt against said corporation.
It was alleged in the petition that W. C. Hathaway, Joseph F. Rumsey, and T. P. Edwards associated themselves together as a body politic and corporate and to be known as the Mansfield Cotton Oil Company. The amount of capital stock was to be $30,000. The defendant, Rumsey, subscribed for 360 shares of the capital stock, same amounting to $9,000. Edwards and Hathaway subscribed for the balance. Each of the subscribers signed an affidavit showing that the full amount of the capital stock had actually been paid in, said sums were not paid and never had been paid, and the affidavit and oath of the said Rumsey in the organization of the corporation were untrue and false.
The plaintiffs, A. L. Gardner, J. M. Marshall, and Proctor & Gamble Company, joined in an action against the defendant--the plaintiff Gardner claiming that the Mansfield Cotton Oil Company became indebted to him in the sum of $5,437,50; the plaintiff Marshall claiming an indebtedness against the corporation for $6,000; and Proctor & Gamble Company claiming that the corporation was indebted to it $980. These debts were created after the organization of the corporation. The plaintiffs contend that, by reason of the untrue and false affidavit of the defendant, he became indebted to each of them for the amounts set forth above.
To the petition of the plaintiffs the defendant demurred upon the following grounds: That several causes of action were improperly joined, and that the petition failed to state facts sufficient to constitute a cause of action. The court below sustained the demurrer upon both grounds. Plaintiffs refused to plead further and elected to stand upon their petition.
The prayer of the petition was that plaintiff have judgment against the defendant individually and separately and personally for the sums of money above set forth, together with interest thereon from the date that each became due.
We are here confronted with this proposition: Can three separate and distinct plaintiffs join in one petition and in one action three separate and distinct claims, one in behalf of each plaintiff, against the same defendant?
Under paragraph 5, § 4740, Revised Laws 1910, the defendant may demur to the petition when it appears on its face "that several causes of action are improperly joined." It is the contention of the plaintiffs that the liability of the defendant arises out of the alleged false affidavit, that the claims arose out of the same transaction, and that, if they did arise out of the same transaction, a liability was created in favor of each of the plaintiffs, and that under the law the different causes of action may be included in the same petition, and that the remedy of the defendant was not to demur, but was a motion to strike out the names of at least two of the plaintiffs if he desired to raise the question of misjoinder of parties, and that, if this motion had been made, then the plaintiffs had their remedy under section 4743, Revised Laws 1910.
The above section provides as follows:
"When a demurrer is sustained, on the ground of misjoinder of several causes of action, the court, on motion of the plaintiff, shall allow him, with or without costs, in its discretion, to file several petitions, each including such of said causes of action as might have been joined; and an action shall be docketed for each of said petitions, and the same shall be proceeded in without further service."
Here we have three lawsuits in one, maintained by three plaintiffs without unity of interest stated in the petition, requiring the proof and defense of three causes of action, upon three different debts created at three different times, upon three different transactions in favor of three different plaintiffs, and which would require three verdicts and three separate judgments. While this section gives the plaintiffs the right to have the causes of action separated, this they did not seek to do, no doubt realizing that this course would have been futile; for, when the demurrer was also sustained on the ground that no cause of action was stated, they could have accomplished nothing by having the causes separately stated, as they were at that time informed by the court they had no cause of action. What the statutes authorize is the joinder of several causes of action in the same petition in behalf of the same plaintiff, or the same joint plaintiffs having unity of interest where they arise out of the same transaction.
Under section 4738 the causes of action so united must all belong to one of these classes, and must affect all the parties to the action, except in actions to enforce mortgages or other liens.
Gardner's cause of action is wholly personal to himself, and in no wise affects Marshall or Proctor & Gamble Company. The cause of action of Proctor & Gamble Company in no manner affects either of the other plaintiffs, and the same is true of Marshall's cause of action. Therefore, since the several causes of action do not affect all the parties, but affect each plaintiff separately and distinctly, and while the several causes of action might have arisen out of the same transaction, the claims constituted different transactions and were improperly joined.
In Jeffers v. Forbes, 28 Kan. 174, Justice Brewer, after considering the statutes of that state and quoting from Tate v. Railroad Co., 10 Ind. 174, 71 Am. Dec. 309, said:
"Two or more persons, having separate causes of action against the same defendant, though arising out of the same transaction, cannot unite; nor can several plaintiffs in one complaint demand several distinct matters of relief; nor can they enforce joint and separate demands against the same defendants."
In Swenson v. Moline Plow Co., 14 Kan. 387, the syllabus is as follows:
"Where S. executed to A. two promissory notes and a mortgage on real estate to secure the payment of the notes, and A. afterward assigned one of the notes to M., held that A. and M. cannot sue jointly as plaintiffs on the notes and mortgage, but each has his separate action."
In St. Louis & S. F. R. Co. v. Dickerson et al., 29 Okl. 386, 118 P. 140, this court said in the third syllabus:
"Where two or more persons have a separate interest in property and sustain a separate damage thereto, they must sue separately, and cannot join in the same action, even though their several injuries were caused by the same act."
In Leavenworth Northern & Southern Railway Co. v. Wilkins et al., 45 Kan. 674, 26 P. 16, the third syllabus is as follows:
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