Meshek v. Cordes

• Decision Date: 31 May 1933
• Docket Number: 21281.
• Citation: 22 P.2d 921,164 Okla. 40,1933 OK 345
• Parties: MESHEK v. CORDES et al.
• Court: Oklahoma Supreme Court

22 P.2d 921

164 Okla. 40, 1933 OK 345

MESHEK v. CORDES et al.

No. 21281.

Supreme Court of Oklahoma

May 31, 1933

Syllabus by the Court.

1. "Section 4662, Rev. Laws 1910 (section 190, C. O. S 1921) providing that, if any action be commenced within due time and the plaintiff therein shall fail otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff may commence a new action within one year after such failure, applies only when the party would otherwise be barred of his right of action from the lapse of time prescribed by the statute of limitations relating to the cause of action." English v. T. H. Rogers Lumber Co., 68 Okl. 238, 173 P. 1046.

2. "The statute of limitations, fixing the time within which an action must be brought, is not changed by section 4662 (section 190, C. O. S. 1921) unless the failure otherwise than upon the merits occur after the time limited by statute shall have expired. When the failure occurs before the expiration of the statutory period, the statute has no application." English v. T. H. Rogers Lumber Co., 68 Okl. 238, 173 P. 1046.

3. "Under the rule of our statute, if the dismissal occurs after the time limit has expired, the plaintiff has one year from that dismissal to bring a new action. To get the benefit of this extension two things are essential: First, the action must have been commenced within due time; and, second, there must have been a failure otherwise than upon the merits after the general limitation of time had expired." Denton v. City of Atchison, 76 Kan. 89, 90 P. 764.

4. Section 190, supra, is a remedial statute, and should have such construction as will best carry into effect the intent of the Legislature. It is entitled to be liberally construed.

5. It may be said that it is immaterial what was the legal cause of the failure of the action, otherwise than on its merits provided plaintiff commenced his action in good faith. The failure of an action due to an irregular, inefficient, and defective service, void or voidable (Ketterman v. Dry Fork R. Co., 48 W.Va. 606, 37 S.E. 683), quashing of service of summons (Clause v. Columbia Savings & Loan Ass'n, 16 Wyo. 450, 95 P. 54), want of jurisdiction (Stevens v. Dill, 142 Okl. 138, 285 P. 845) dismissal without prejudice for failure to pay costs ( Myers v. First Presbyterian Church of Perry, 11 Okl 544, 69 P. 874), is such a failure otherwise than on the merits within the meaning of section 190, supra, and is sufficient to confer the right to bring a new action within the time limit.

6. "Any event in which two or more persons are actors, involving a right which may presently, or by what may proximately occur in respect thereto, be violated, creating a redressible wrong, is a transaction within the meaning of the statute." Emerson v. Nash, 124 Wis. 369, 102 N.W. 921, 70 L. R. A. 326, 109 Am. St. Rep. 944.

7. "In section 5623 (section 266, C. O. S. 1921) of the statute (Comp. Laws 1909), which provides that several causes of action may be united in the same petition, where they arise out of the same transaction, or transactions connected with the same subject of action, the term 'cause of action' means a redressible wrong." Stone v. Case, 34 Okl. 5, 124 P. 960, 43 L. R. A. (N. S.) 1168.

8. "It is not necessary to the proper joinder of various causes of action in one complaint that they should affect all the parties equally. It is enough that they affect all, though in unequal degrees. The test is whether or not the parties joined in the suit have one connected interest centering in the point in issue in the cause, or one common point of litigation. If so, unconnected parties may be joined, even where different relief is sought against them." Baylies, Code Pleading and Practice, § 8, c. 8, p. 162.

9. "If it is doubtful whether or not allegations are such as to make a pleading demurrable for misjoinder that construction should be adopted which will sustain the pleading." 49 C.J. 394.

10. "Only persons improperly joined can object to the misjoinder. * * *" 1 R. C. L. 368.

11. The overruling of a demurrer for misjoinder of causes of action is not ground for reversal of a judgment or decree unless the defendant has been prejudiced in some substantial manner by such judgment or decree.

Appeal from District Court, Osage County; Jesse J. Worten, Judge.

Action by Tom Meshek against P.J. Cordes and others, in which the named defendant filed cross-petition. From an adverse judgment, plaintiff appeals.

Reversed and remanded, with directions.

Cress, Tebbe & Cress, of Perry, and Frank T. McCoy, of Pawhuska, for plaintiff in error.

Hamilton, Gross & Howard, of Pawhuska, for defendants in error.

McNEILL Justice.

The question involved in the instant case is whether the district court of Osage county erred in sustaining the separate demurrers of some of the defendants to the petition of plaintiff. The parties will be referred to as they appeared in the trial below.

It appears that the state highway commission entered into a certain contract with the Osage Construction Company, a copartnership, composed of J. E. Beecher, Ray Betts, and Jim Moss, residents of Osage county, for the improvement of a certain portion of the state highway in Osage county, and that said company executed a statutory bond required by sections 7486 and 7487, C. O. S. 1921, wherein it was named as principal and Citizens' Trust Company of Pawhuska, Okl., a corporation, was named as surety. The bond was approved by the highway commission, and it required the principal to pay all the indebtedness incurred for the labor and material furnished in the construction of said state highway project. It further appears that said company entered into a contract with P.J. Cordes, a resident of Noble county, for a certain portion of said work, and that said Cordes in turn contracted with Tom Meshek, plaintiff herein, for certain labor and material furnished on said project.

Meshek claims he was not paid for said labor and materials. He has filed two suits in an attempt to recover on his claim of indebtedness incurred by reason of this project.

The first action was filed in Noble county, and was thereafter dismissed for the reason that the court had no jurisdiction over the defendants of Osage county. Plaintiff did not appeal from said order of dismissal.

Thereafter plaintiff filed the instant case in the district court of Osage county on May 23, 1929. Summons was served on said defendants in Osage county on May 25, 27, 1929. Summons was issued to Noble county for service on P.J. Cordes, which was served on May 24, 1929. Thereafter, on June 25, 1929, the defendants of Osage county filed separate motions to require the plaintiff to make his petition more definite and certain in two respects: First, when the work was completed; and, second, the dates between which the work was done. The defendant Cordes filed his answer and cross-petition on July 8, 1929, wherein he sought judgment against the Osage Construction Company and the Citizens' Trust Company for the amount they were indebted to him by reason of said project. Thereafter the plaintiff on August 20, 1929, filed an amendment to his petition setting forth that he completed the work on or about March 9, 1928, and that the items of labor were performed between October 26, 1927, and March 9, 1928. The defendants of Osage county, being the defendants in error herein, filed separate demurrers to the amended petition on the grounds that there was a misjoinder of causes of action; misjoinder of defendants; that the petition, as amended, did not state a cause of action; and that any pretended cause of action attempted to be stated was barred by the statute of limitations. On November 4, 1929, the court sustained these demurrers; the plaintiff refused to plead further, and the court dismissed the pretended causes of action.

It is the contention of the plaintiff that the action in Osage county was not barred under sections 7486 and 7487, C. O. S. 1921, which sections require that an action on a bond for the recovery of money judgment for labor and materials furnished on a state highway project must be brought within six months from the completion of said public improvement, that the petition as amended does not show that the Osage county action was brought more than six months after the completion of said improvement project, and that, even though it was so barred under said sections, it was still maintainable under the provisions of section 190, C. O. S. 1921, providing that, when an action fails otherwise than on its merits, a new action may be brought within one year from the date of such failure.

The defendants contend:

(1) The action was barred by the provisions of section 7487, C. O. S. 1921, when the suit was filed in Osage county.

(2) The action was barred under the provisions of section 7487, C. O. S. 1921, at the time the pretended suit in Noble county was commenced as to each of these defendants.

(3) The pretended suit in Noble county cannot be considered as a basis for the extension of the one year granted by section 190, C. O. S. 1921.

(4) The pretended suit in Noble county will not serve to grant the privilege of the additional year, for the reason that no service was had upon these defendants in error in that suit until after the statute of limitations had already run.

(5) The suit in Osage county is not the same as the pretended suit in Noble county; therefore section 190, C. O. S. 1921, has no application.

(6) The sustaining of the demurrers and the dismissing of plaintiff's suit was proper, independent of the statute of limitations.

The petition filed in the instant case shows on its face that another action had been commenced in Noble...