Jerome v. Rust

• Decision Date: 13 February 1907
• Citation: 21 S.D. 191,110 N.W. 780
• Parties: FRANKLIN JEROME et al., Plaintiff and respondent, v. H. W. RUST et al., Defendant and appellant.
• Court: South Dakota Supreme Court

21 S.D. 191

110 N.W. 780

FRANKLIN JEROME et al., Plaintiff and respondent,

v.

H. W. RUST et al., Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Joseph W. Jones, Judge Reversed Joe Kirby Attorneys for appellants. Muller & Conway Attorneys for respondents. Opinion filed Feb. 13, 1907 (See 122 NW 344)

CORSON, J.

This is an appeal from an order overruling the demurrer to the complaint. It is alleged in substance in the complaint that in March, 1904, the plaintiff Jerome recovered a judgment in the county court of Minnehaha county for $129.60; subsequently an appeal was taken by the defendant to the Supreme Court. Pending, this appeal Jerome assigned his county court judgment to the plaintiffs Muller & Conway. As security on the appeal from the county court to the Supreme Court the defendant gave what is known as a “cost bond,” and also a supersedeas bond, containing the usual provisions; the two bonds being executed in one instrument. The judgment of the county court being affirmed (103 NW 26), this action was brought in the circuit court to recover the amount of the judgment in the county court, and judgment for costs in the Supreme Court. To this complaint a demurrer was interposed on the following grounds, among others: “That several causes of action have been improperly united”—which was overruled, and from the order overruling the demurrer this appeal is taken.

It is contended by the appellants that this demurrer should have been sustained, for the reason that Muller & Conway were the exclusive owners of the county court judgment, and that Jerome had no interest therein, and that Jerome was the exclusive owner of the Supreme Court judgment for costs, and that Muller & Conway had no interest therein, and hence the three parties could not properly be joined as plaintiffs. It is contended on the part of the respondent that the judgment entered in the Supreme Court was not in effect a separate judgment, but was only an incident to the judgment rendered in the county court, and, as there would be a small balance due the plaintiff Jerome on account of the two judgments, he was properly joined with Muller & Conway as a plaintiff in the action; that it is competent for an assignee and assignor to join in one action to recover the amount assigned, and, inasmuch as the contract to indemnify the plaintiff was contained in one instrument, it was proper for all to join in this action. We are inclined to take the view that the appellant is right in his contention, and that the demurrer should have been sustained. While it appears the two contracts—the one for the payment of costs and damages, and the other for the payment of the judgment—are included in the one instrument, they are nevertheless separate contracts. The plaintiff Jerome had no interest in the county court judgment, as that had been assigned to Muller & Conway, and they were therefore the exclusive owners of the same. It is equally clear that Muller & Conway had no interest in the judgment for costs recovered in the Supreme Court, as that judgment had never been assigned to them. It is true that in a certain sense the judgment for costs in this court was an incident, and, by section 327, Rev. Code Civ. Proc., is entered in the court below, but it is nevertheless so far separate and distinct from the original judgment that an assignment of that judgment...