State ex rel. Johnson v. True

• Decision Date: 11 April 1887
• Parties: STATE EX REL. SAMUEL E. JOHNSON, Appellant, v. VIRGIL TRUE ET AL., Respondents.
• Court: Kansas Court of Appeals

25 Mo.App. 451

STATE EX REL. SAMUEL E. JOHNSON, Appellant, v. VIRGIL TRUE ET AL., Respondents.

Court of Appeals of Missouri, Kansas City.

April 11, 1887

APPEAL from Linn Circuit Court, HON. G. D. BURGESS, Judge.

Affirmed.

The case is stated in the opinion.

A. W MULLINS, for the appellant.

I. The court erred in sustaining the demurrer to the petition. The suit was properly brought in the name of the State of Missouri to the use of Samuel E. Johnson, and it was unnecessary to make either the sheriff or Mary E. Johnson a party thereto. The bond sued on was given under the provisions contained in section 2366, 1 Revised Statutes of Missouri, 1879, which provides that when personal property shall be seized by virtue of an execution, any person other than the debtor in the execution may deliver to the officer making the seizure, a notice in writing, verified by affidavit, claiming such property, or any part thereof setting forth therein the right, title or interest of the claimant in and to such property, the officer shall thereupon at once deliver a copy of the notice to the execution creditor; and if such execution creditor shall fail to execute and deliver to such officer, a bond payable to the state of Missouri, with sufficient sureties, conditioned to indemnify such officer and claimant against all damages and costs that may accrue to such officer, or to such claimant, by reason of the seizure and sale of such property, the officer shall abandon such levy and release the property to the claimant. And such bonds may be sued on, at the instance of any person injured, in the name of the state to the use of such person, for any breach of the condition of such bonds; and the damage which such person shall sustain shall be recovered thereon. Rev. Stat., sect. 2366; Stewart v. Thomas, 45 Mo. 42; Barnes v. Webster, 16 Mo. 258; State to use v. Morton, 18 Mo. 53; State to use v. True et al., 20 Mo.App. 176.

II. Bonds of this character are embraced within section 590, Revised Statutes, providing that " any person aggrieved," etc., may prosecute suit, etc., " whether joined or not with other persons also interested therein." Rev. Stat., sects. 577, 580, 581.

III. Ample provision is made in the statute for the protection of securities, that they may not be required to make payment beyond the amount of the penalty of the bond. Rev. Stat., sects. 585, 589.

H. LANDER, S. P. HUSTON, for the respondents.

I. Tenants in common or joint owners of chattels must join in a suit for the common property or an injury thereto. Dicy on Parties [marginal] 382; Barbour on Parties [2 Ed.] sect. 2, p. 266; Brown on Parties, 209. The code has not in any respect changed this rule. Little v. Harrington, 71 Mo. 391; Smoot v. Wathen, 8 Mo. 525.

II. The same rule applies in cases where suit is instituted in the name of the state for the use of a party, where the substantive purpose is a recovery of damages on behalf of the relator. This question has been expressly decided in this state. State to use v. Hesselmeyer, 34 Mo. 76. This was a suit on an attachment bond given to the state. The court said, " upon the supposition that Fenton was jointly interested with Young in the property for indemnity, for the taking of which the bond was given, he ought to have been joined with Young as relator, and without him, there ought, in such case, to have been no recovery."

III. To all intents and purposes the statute makes suits of this character the private suit of the relator. Rev. Stat., 1879, sect. 583, p. 92.

A. W. MULLINS, in reply.

Whatever may be the proper construction to be given the statute upon which this suit is predicated as to the joinder of the two claimants, it was too late for the defendants to raise that question in this case. The rule of law is, that " if one of several part-owners of a chattel sue alone for a tort, and the defendant do not plead in abatement, the other part-owners may afterwards sue alone for the injury to their undivided shares, and the defendant cannot plead in abatement of such actions." 1 Chitty on Pleadings [14 Am. Ed.] 66, side p. 66; Whittelsey's Mo. Practice, 113; Sedgworth v. Overend, 7 T. R. 279. Hill v. Gibbs, 5 Hill [N. Y.] 56 59, note a.

PHILIPS P. J.

This is an action on an indemnifying bond given by defendants to the state, for the protection of the sheriff, and the relator and one Mary E. Johnson. The sheriff, under a writ of execution to the use of the defendant, True, levied on certain personal property as the property of the defendant in execution. Notice of adverse claim thereto was given him by the relator and Mary E. Johnson, as tenants in common. Thereupon, pursuant to the provisions of section 2366, Revised Statutes, the said True, with the other defendants, executed to the state a bond to indemnify the sheriff and said claimants. The sheriff thereafter, having proceeded to sell the property as that of the defendant in execution, this action is brought, in the name of the state to the use of Samuel E. Johnson, on said bond, to recover damages for his undivided interest in said property.

To this petition defendants demurred, on various grounds, principal among which are, that the petition shows on the face that Mary E. Johnson is a tenant in common with said Samuel Johnson in the property in question, and she is not joined as one of the relators; and because the bond sued on was given for the joint benefit of the joint interest of said Samuel and Mary Johnson, and the said Mary is a necessary party, etc. The court sustained the demurrer; and the plaintiff, standing on the petition, brings the case here on appeal.

It is distinctly stated in the petition that the property levied on by the sheriff was owned by Samuel and Mary Johnson as tenants in common, " each being the owner of an undivided one-half thereof." The petition also alleges that the indemnifying bond sued on recited that said property was claimed by said Samuel and Mary Johnson as their property; and one of its conditions is, that if the obligors shall " pay and satisfy to the said claimants all damages which they sustain in consequence of such seizure and sale."

I. There can be no question as to the common law rule, that tenants in common of a chattel should join in an action for any injury, trespass or wrong done to their joint property. Barb. on parties, 266-7. Nor is this rule changed by the code of practice. Little v. Harrington, 71 Mo. 390. The defect of the non-joinder of all the joint owners being apparent on the face of the petition, demurrer was the appropriate plea to hit the blot.

II. It is insisted, however, with much ingenuity by counsel for appellant, that owing to the fact that, under the statutes the state of Missouri is made the obligee in the bond, and the statute (section 2366, Revised Statutes), declares that such bond " may be sued on at the instance of any person injured," for the recovery of any damage sustained by him, this, in...