Hayden v. Pearce
| Decision Date | 30 April 1898 |
| Citation | 52 P. 1049,33 Or. 89 |
| Parties | HAYDEN v. PEARCE. [1] |
| Court | Oregon Supreme Court |
Appeal from circuit court, Marion county; H.H. Hewitt, Judge.
Action by George J. Pearce, administrator, against Ben Hayden and Clell Hayden. From a judgment of the circuit court dismissing a writ of review, Ben Hayden appeals. Reversed.
W.H Holmes and W.M. Kaiser, for appellant.
John A Carson, for respondent.
This is an appeal from a judgment of the circuit court dismissing a writ of review, and affirming a judgment of a justice's court. The facts are that on July 27, 1895, the defendant in this proceeding commenced an action in the justice's court for Salem district against Ben and Clell Hayden, to recover $121.76 upon an account for goods, wares, and merchandise alleged to have been sold and delivered by his intestate to the defendants jointly. Both defendants were served with process, and answered separately, denying all the material allegations of the complaint. Upon the trial it appeared that the account sued on was made up in part of sundry items of goods, wares, and merchandise sold and delivered to the defendants jointly, and, in part, goods sold and delivered to the defendant Ben Hayden individually; whereupon the court segregated the several amounts due, and entered judgment against the defendants Ben and Clell Hayden jointly for $76.90, and a several judgment against Ben Hayden for the remainder, and the only point on this appeal is whether such judgment is valid.
At common law, in an action brought against two defendants on an alleged joint demand, a judgment could not be rendered against both for a part of the amount sued for, and a several judgment against one for the remainder, because (1) in such an action a judgment must be given against all of the defendants or none; and (2) causes of action against two or more defendants could not be joined with a cause of action against one of them separately. The first of these objections, however, is obviated by sections 244 and 245 of our statute (Hill's Ann.Laws), the effect of which is that, "when in an action upon a joint contract it is determined that one or more of the defendants are not liable but that one or more of the others are, judgment may be given and rendered against those liable, whether their liability be joint or several, and the other defendants may be dismissed." Tillamook Dairy Ass'n v Schermerhorn (Or.) 51 P. 438. But these sections are only intended to obviate the objection of a variance between the allegations and the proof, and to enable the plaintiff to recover one judgment against such of the defendants as may appear from the proof to be liable, notwithstanding the fact that other parties may be made joint defendants. But they do not authorize different judgments in one action upon independent causes of action which, both at common law and under our statute, cannot be joined. It is expressly provided by statute that the causes of action which may be united in one complaint "must affect all the parties to the action" (section 93); and this is but declaratory of...
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McGrath v. White Motor Corp.
...all the parties to the action.' This has been held to require that all joined causes of action have the same defendants. Hayden v. Pearce, 33 Or. 89, 52 P. 1049 (1898); Clark, Code Pleading (2d ed 1947), 445. If the cause of action against Haupert and Concrete-Steel for negligent repairs is......
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Fischer v. Bayer
... ... 326] liable may be dismissed. Or. L. §§ 61, 180, 181; ... Tillamook Dairy Ass'n v. Schermerhorn, 31 Or ... 308, 51 P. 438; Hayden v. Pearce, 33 Or. 89, 52 P ... 1049: Stivers v. Byrkett, 56 Or. 565, 572, 108 P ... 1014, 109 P. 386, 387; Bertin & Lepori v. Mattison, ... ...
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Lithia Lumber Co. v. Lamb
...would have made the complaint subject to a demurrer, since each cause of action did not affect all the defendants. Hayden v. Pearce, 33 Or. 89, 52 P. 1049 (1898). The defendants attempted to reach one suspected defect in the complaint by a demurrer asserting that the complaint had joined to......
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Bechtold et al. v. Wilson et al.
...before its passage." An illustration of the application of the rules enunciated in Garnsey v. County Court is found in Hayden v. Pearce, 33 Or. 89, 52 P. 1049 (1898), opinion by Mr. Justice ROBERT S. BEAN. Two defendants were sued in the justice's court for money upon an account for goods s......