Richardson v. Opelt

• Decision Date: 18 April 1900
• Citation: 60 Neb. 180,82 N.W. 377
• Parties: RICHARDSON v. OPELT ET AL.
• Court: Nebraska Supreme Court

60 Neb. 180

82 N.W. 377

RICHARDSON

v.OPELT ET AL.

Supreme Court of Nebraska.

April 18, 1900.

Syllabus by the Court.

1. Ordinarily all actions must be prosecuted and defended by the true names of the parties thereto, and not by the initials or a contraction of the first or Christian name or names. The rule, however, has its exception; and, in actions upon promissory notes or other written instruments, whenever any of the parties thereto are designated by the initial letter or letters or some contraction of the Christian name or first name or names, it is sufficient to so designate such person, instead of stating the Christian or first name or names in full. Section 23, Code Civ. Proc.

2. In a petition in equity for the foreclosure of a lien on personal property created by a chattel mortgage given to secure several promissory notes, and for a personal judgment in case of deficiency after the sale of the property mortgaged, but one cause of action is stated, although different notes evidence the debt sought to be satisfied by the foreclosure proceedings.

3. When the pendency of a prior suit is pleaded in abatement, the case must be the same, or it will not be sustained. There must be the same parties, or such as represent the same interest. The same rights must be asserted, and the same relief prayed for. This relief must be founded on the same facts, and the essential basis of the relief must be the same in both actions. As a general rule, where a judgment in the prior suit would be a bar to a judgment in the second suit brought in the same or another court of concurrent jurisdiction, the plea of other suit pending will be held good.

4. In every action, a party thereto seeking to enforce a claim, legal or equitable, must present to the court all the grounds upon which he expects judgment in his favor. He cannot divide his demand, and prosecute by different actions. This principle, however, does not extend so as to require distinct actions, each of which would authorize by itself independent relief to be prosecuted in a single suit, although they might be considered together.

Appeal from district court, Lancaster county; Holmes, Judge.

Action by C. J. Richardson against Jennie Opelt and the Missouri, Kansas & Texas Trust Company. Judgment for plaintiff. Defendants appeal. Affirmed.Thomas Ryan, for appellants.

C. A. Atkinson and Talbot & Allen, for appellee.

HOLCOMB, J.

The plaintiff and appellee began an equitable action in the lower court, the object and purpose of which were to foreclose a chattel mortgage executed by appellant Jennie Opelt upon a varied assortment of hotel furniture used in the Hotel Windsor, in the city of Lincoln, and which mortgage was given to secure several promissory notes, aggregating the principal sum of $2,400. The petition alleged, in substance, the making of the said notes, and the mortgage to secure the same; that said notes were given to one F. G. Richardson, and indorsed to Clara M. Richardson, and by her indorsed to the plaintiff, who, it is alleged, is the bona fide holder and owner thereof, for value. The assignment of the mortgage to the indorsees of the notes is also pleaded. There is a prayer for an accounting, and that the goods so mortgaged be sold to satisfy the amount found due, and for judgment against the maker in case of deficiency. By supplemental pleadings the appellant the Missouri, Kansas & Texas Trust Company was brought into the case as defendant; it appearing that this corporation had, or claimed to have, some interest in the property mortgaged, by virtue of a subsequent mortgage given by the defendant Opelt, covering the same property as the first mortgage. The two defendants joined their interests, and each interposed substantially the same defense.

A motion was made to require the plaintiff to set out his name in full, and the overruling of this motion is assigned as a cause of complaint. It appears from the pleadings that the action is founded on the notes and mortgage mentioned, and that, in the indorsement of the notes and in the assignment of the mortgage to the plaintiff, it was by his initials, as “C. J. Richardson,” and not his full given name. We are of the opinion that the plaintiff brought himself within the exception to the general rule requiring actions to be prosecuted and defended by the true names of the parties thereto. Section 23, Code Civ. Proc., provides that, “in all actions * * * upon promissory notes or other written instruments, whenever any of the parties thereto are designated by the initial letter or letters, or some contraction of the Christian or first name or names, it shall be sufficient to designate such person by the name, initial letter or letters, or contraction of the first name or names, instead of stating the Christian or first name or names in full.” The objection to the name by which plaintiff prosecutes his action, being manifestly without merit, need not further be considered.

It is also urged that the plaintiff should be required to separately state and number his alleged several causes of action. We think this objection is also without merit. The action was, in the main, brought to foreclose the chattel mortgage mentioned. The cause of action arises from the breach of the conditions of the mortgage. It is the failure of the mortgagor to meet these conditions which gives rise to a cause of action. The notes are merely evidence of the indebtedness. They are the form in which the indebtedness appears which the mortgage secures. The action is not based primarily upon the notes, as separate contracts, but upon the mortgage and the debt secured thereby, in its entirety. But one cause of action is stated in the petition, and the contention of appellants to the contrary cannot be sustained.

The only real and substantial point of controversy in the case, however, as we view it, is the third objection by appellants to which we now give attention. Both defendants plead in their answers, as cause for abatement of plaintiff's action, a prior suit pending between the same parties, and regarding the same subject-matter. As to the plea in abatement, both answers allege, in substance, that the defendant trust company, prior to the bringing of the present action, commenced an action in the same court against the defendant Opelt and one F. G. Richardson and Clara M. Richardson, mentioned in the pleadings, in which action summons was served on all the defendants, and by motions and otherwise they appeared in such case, and that the court acquired jurisdiction over them, and of the subject-matter of said action, which, it is alleged, was and is still pending and undetermined; that in said action the defendant trust company, while the legal title to the notes and mortgage sued on by the plaintiff was vested in and held by said Clara M. Richardson, began its action, in which it claimed to have a superior mortgage on the same property, and asked that enforcement and collection of plaintiff's mortgage be enjoined, and that the holder of the legal title be enjoined from proceeding to collect and enforce the same against the property therein and in the trust company's petition described, and that a restraining order was issued accordingly; that the trust company also in said action alleged that it was the owner and holder of a certain mortgage...