Hoskins v. McGirl

• Decision Date: 28 November 1892
• Citation: 31 P. 544,12 Mont. 563
• Parties: HOSKINS v. McGIRL et al.
• Court: Montana Supreme Court

31 P. 544

12 Mont. 563

HOSKINS v. McGIRL et al.

Supreme Court of Montana

November 28, 1892

Appeal from district court, Yellowstone county; GEORGE R. MILBURN Judge.

Action by Omar Hoskins against Thomas McGirl, Ben E. Snipes, H. H Mund, and Matthew H. Murphy. Demurrer to complaint sustained. Plaintiff appeals. Reversed.

The other facts fully appear in the following statement by DE WITT, J.:

The complaint sets forth the following instrument in writing "Billings, Montana, December 18th, 1889, $15,000.00. Three years after date, for value received, I promise to pay Omar Hoskins fifteen thousand dollars, with interest at the rate of ten per cent. (10%) per annum from date. This note is subject to all counter-claims, set-offs, and defenses which the maker may have against the said Omar Hoskins on account of any debts of the firm of Hoskins and McGirl, or of the firm of Hoskins and Co., which the maker hereof may be compelled to pay, or for which he may now be, or hereafter become, liable to pay. THOMAS McGIRL." Upon this instrument there are indorsements of the payments of $8,073.15 and $6,316.85. The complaint further pleads that a mortgage was given by defendants to secure the faithful performance of said obligation. The eighth paragraph of the complaint is as follows: "Plaintiff further states that the defendant Thomas McGirl claims and refuses to pay said balance so alleged to be due on said obligation on the ground and reason that a certain debt contracted by said defendant and plaintiff herein, while doing business as Hoskins & McGirl, to the defendants H. H. Mund and Ben E. Snipes, on or about the ___ day of July, 1886, of about the sum of $1,100 has not been paid, and that it is now a subsisting debt, and a claim which he may become liable to pay. Plaintiff avers and alleges the fact to be that said debt has been fully and completely paid, and that it is in no wise a debt or obligation which the defendant Thomas McGirl can in any wise be liable to pay, or that he can be compelled to pay." The action is for a money judgment for the balance claimed to be due on the instrument, and for a foreclosure of the mortgage, and for an accounting. To this complaint a demurrer was filed by McGirl and Mund, and sustained by the court. The plaintiff appeals, and upon the appeal only one of the grounds of the demurrer is presented for our consideration. That ground is found in the demurrer, in the following language: "That there is a misjoinder of parties defendant in this action, as the complaint shows, upon the face thereof, that the defendants Ben E. Snipes H. H. Mund and Matthew H Murphy are improperly joined with the defendant McGirl, for the reason that the complaint does not show that either of said defendants are necessary parties to the complete determination or settlement of...