Gustafson v. Johnson

• Citation: 51 N.W.2d 108,235 Minn. 358
• Decision Date: 11 January 1952
• Docket Number: No. 35529,35529
• Parties: GUSTAFSON v. JOHNSON et al.
• Court: Supreme Court of Minnesota (US)

Page 108

51 N.W.2d 108

235 Minn. 358

GUSTAFSON v. JOHNSON et al.

No. 35529.

Supreme Court of Minnesota.

Jan. 11, 1952.

Syllabus by the Court.

1. A mistake in the name of a party which is amendable in the trial court will be disregarded by this court as not affecting the substantial rights of the parties where it appears that no one is misled or prejudiced by the defect.

2. As a general rule, an action for contribution does not mature until one of two or more obligors or tort-feasors has paid more than his share of the debt or obligation.

3. A party who may become liable for contribution or indemnity to the defendant sued in an action may be brought in as an additional party on motion of the defendant sued, in the discretion of the trial court, under M.S.A. § 540.16.

4. An action for contribution or indemnity against a third-party defendant brought into the action on motion of the defendant originally sued is an action for the recovery of money within the meaning of our garnishment statute, § 571.41.

Durham & Swanson, Minneapolis, for appellants.

C. E. Warner, Minneapolis, for respondent.

KNUTSON, Justice.

This action was originally commenced against defendants Earl Johnson and B. R. L. Johnson, a copartnership doing business as Better Bilt Manufacturing Company (hereinafter referred to as Better Bilt); Roy Steller, Merrill R. Steller, and Donald R. Senior, a copartnership doing business as Stellers' (hereinafter referred to as Stellers'); and Raymond Gustafson and Sidney Gustafson, to recover damages for personal injuries alleged to have been sustained when certain chains holding up a ramp on a grain elevator broke, causing the ramp to fall on and injure plaintiff.

The complaint alleges that Better Bilt was engaged in the business of manufacturing farm machinery and equipment and, more particularly, a grain and corn elevator; that Stellers' was engaged in assembling, selling, and distributing such elevators; that the Gustafsons were engaged as farmers; that Better Bilt made and sold, in knockdown form, a grain elevator to Stellers', who assembled and sold it to the Gustafsons for use upon their farm; that on December 4, 1948, plaintiff was about to assist the Gustafsons in the filling of a granary with ground feed; and that, while so doing and while standing next to such elevator, the chains holding up a ramp broke, causing it to fall on plaintiff and inflicting upon him the injuries for which he now seeks recovery. Plaintiff further alleges that Better Bilt was negligent in the manufacture and sale of the elevator in various respects; that Stellers' was negligent in assembling the elevator; and that the Gustafsons were negligent in the use thereof.

Better Bilt interposed an answer denying liability and asserting as a defense contributory negligence on the part of plaintiff. Thereafter, said defendant made a motion to bring in as additional parties defendant Williams Hardware Company and American Chain Company. The affidavit of the moving defendant in support of its motion sets forth that the portions of the chain which broke were manufactured by American Chain Company; that if there was any defect therein it was caused by the negligence of American Chain Company in the manufacture thereof; and that Williams Hardware Company had sold the chains to the manufacturing defendant, and its liability is based upon an implied warranty of fitness for the use intended. The trial court granted the motion, ordering the moving defendant to serve an amended answer setting up a cross complaint against Williams Hardware Company and American Chain Company, and further ordering that the amended answer and cross complaint be served as a summons and complaint in the original action. Thereafter, an amended answer and cross complaint were prepared. In it and in all subsequent papers and proceedings, the corporation named as American Chain Company in the moving papers, affidavit, and order of the court appears as American Chain and Cable Co. Inc. In its cross complaint, Better Bilt alleges the commencement of the action by plaintiff, a copy of the complaint in which action is attached, and substantially the same facts set forth in the affidavit to support its motion, the substance of which is stated above. The prayer for relief in the cross complaint is as follows: 'Wherefore, these defendants pray judgment that in the event of a recovery by the plaintiff against these defendants, that these defendants and each of them have judgment by way of indemnity or contribution against the additional defendants, American Chain and Cable Co., Inc., and Williams Hardware Company, together with their costs and disbursements herein.'

No question is raised here as to the propriety of joining Williams Hardware Company.

American Chain and Cable Co. Inc., is a foreign corporation claiming to have no office or resident agent in this state upon whom service of process may be made. Attempting to obtain service under M.S.A. § 543.12, a garnishment summons was served on Minneapolis Iron Store Corp., and it is conceded that funds of American Chain and Cable Co. Inc., in the amount of $3,748.93 were impounded by the garnishment. The garnishment disclosure was made on November 2, 1950. On November 29, 1950, American Chain and Cable Co. Inc., appeared specially and moved the court to set aside and vacate the service of the garnishment summons for the reason that the action upon which the garnishment proceeding is based is not such an action as will permit a garnishment under our statute and that the moneys of the third-party defendant have been wrongfully impounded. On January 25, 1951, the court made its order granting the motion and dismissed the garnishment and released the funds impounded by the same. This appeal is from such order.

Respondent contends that there is a fatal variance in the name of the third-party defendant in the original motion papers and order of the court and in the subsequent proceedings, and, for this reason, that the court does not have jurisdiction over respondent. Respondent further contends that the action against it will not support a garnishment because it is not an action for the recovery of money within the meaning of § 571.41.

1. It is conceded that in the original motion to bring in third-party defendants and in the court's order granting the motion respondent is designated as American Chain Company. In the amended answer and cross complaint and in all subsequent papers and proceedings, including the garnishment proceeding, respondent is designated by its correct name, American Chain and Cable Co. Inc. Respondent raised no objection in the lower court based on the discrepancy in these names. That it was not misled or prejudiced is apparent from the fact that in the affidavit of counsel for respondent submitted in connection with its special appearance and in support of its motion to dismiss the garnishment respondent is referred to by its correct name, as well as by the symbolic name of 'American Chain.'

The defect in the name of respondent in the original papers bringing it in as a party defendant was amendable in the trial court. Wise v. Chicago B. & Q.R. Co. Relief Dept., 133 Minn. 434, 158 N.W. 711; Kenyon v. Semon, 43 Minn. 180, 45 N.W. 10; 3 Dunnell, Dig. & Supp. § 5104.

A mistake in the name of a party which is amendable in the lower court will be disregarded by this court as not affecting the substantial rights of the parties where it appears that no one was misled or prejudiced by the defect. Hancock-Nelson Merc. Co. v. Midwest Food Packers, 182 Minn. 426, 234 N.W. 696; 67 C.J.S., Parties, § 99; Bauman v. Grubbs, 26 Ind. 419.

In Farmers & Merchants State Bank v. Hampton Farmers Elev. Co., 171 Minn. 209, 213 N.W. 742, we held that it was not an abuse of discretion to deny plaintiff's motion to amend the name of the defendant from Hampton Farmers Elevator Company to Hampton Farmers Co-operative Elevator Company, Inc.; but it appeared in that case that the latter corporation had taken over the business and affairs of the former corporation and that both corporations were still in existence. We did, however, recognize the power of the court to grant the motion had it seen fit to do so in its discretion. We there said, 171 Minn. 211, 213 N.W. 742: '* * * While it would seem from the record that the amendment might well have been allowed, it has always been recognized that the allowance of such amendments rests very largely in the discretion of the trial court.' See, also, 39 Am.Jur., Parties, § 125; Clevenger v. Grover, 212 N.C. 13, 193 S.E. 12, 124 A.L.R. 82; Annotation, 124 A.L.R. 86; Griffin v. Faribault Fair & A. Ass'n, 203 Minn. 97, 280 N.W. 7.

There is no showing here of any prejudice to respondent. The garnishment proceedings all carried the correct name of respondent. It appeared specially in its right name to move for a dismissal of the garnishment on other grounds and made no mention of a defect in the names at that time or at any other time in the lower court. Under these circumstances, it is too late now to raise this issue.

2. The principal point raised by this appeal is whether the original defendants, in their cross complaint against respondent, have pleaded a cause of action in which garnishment is available. The ultimate decision of this question rests upon the determination of three main propositions:

(1) What are the prerequisites to the commencement of an action for contribution or indemnity?

(2) May a party who may become liable for contribution or indemnity be brought in as an additional party defendant by the original defendant in the main or original action under M.S.A. § 540.16?

(3) If the second question is answered in the affirmative, is an action against one whose liability depends on the establishment of liability against the original defendant such an action for the recovery of money as will permit a garnishment proceeding under § 571.41?

We must...