Sundberg v. Goar

• Decision Date: 13 May 1904
• Docket Number: 13,818,13,819 - (90,91)
• Citation: 99 N.W. 638,92 Minn. 143
• Parties: BENGT E. SUNDBERG v. M. A. GOAR and Others
• Court: Minnesota Supreme Court

99 N.W. 638

92 Minn. 143

BENGT E. SUNDBERG v. M. A. GOAR and Others

Nos. 13,818, 13,819 - (90, 91)

Supreme Court of Minnesota

May 13, 1904

Separate appeals: (1) by Charles F. Peterson from an ex parte order of the district court for Kittson county, Watts, J making him a party defendant in the action; and (2) by the original defendants, M. A. Goar, and others, from said order and from a subsequent order of Grindeland, J., refusing to vacate such ex parte order and permitting plaintiff to amend his complaint. Appeal of Peterson dismissed. On appeal of defendants, order refusing to vacate ex parte order reversed.

SYLLABUS

Appeal.

An ex parte order adding new parties defendant to an action is not appealable.

Notice of Appeal.

But an order denying a motion to vacate such an order is appealable, and is not bad for duplicity because in the notice of appeal is embodied an appeal from the ex parte order and also an appeal from an order granting leave to amend the complaint.

Additional Parties.

Application to bring in additional parties defendant, under the provisions of section 5178, G.S. 1894, must be made with reasonable diligence after notice of the necessity of bringing them in; and an unreasonable delay unexcused will bar the right where the other defendants would be prejudiced by granting it.

Action Against Parties Jointly Liable.

The rule at common law required all persons jointly liable on a contract to be made parties to an action brought thereon, and a joint judgment only could be recovered. This rule was changed by chapter 303, p. 563, Laws 1897, but not as to contracts existing at the time of its passage.

Action Against Parties Jointly Liable -- Unreasonable Delay.

This action was brought against defendants to recover upon a bond. The answer set up in defense that the bond was the joint obligation of defendants and one Peterson, who was not a party to the action, and demanded that the action be dismissed and abated for failure of plaintiff to join him as a defendant. Thereafter, but not until the lapse of three and a half years after the service of defendant's answer, which long delay was wholly unexcused, plaintiff obtained from the court an ex parte order making Peterson a defendant in the action, and requiring him to appear and answer the complaint therein. At the time of making this order the cause of action was, as to Peterson, barred by the statute of limitations, though it was not so barred when the action was commenced. The bond was in fact the joint contract of defendants and Peterson, and Peterson, under the common-law rule in force as to this contract, was an indispensable party to the action. It is held that plaintiff was guilty of laches and unreasonable delay in making his application to join Peterson as a party, and that, as the cause of action had become barred as to him at the time it was made, the other defendants would be materially prejudiced, if it were granted, by the loss of the right of contribution, the court erred in ordering him made a party.

John N. Berg, for appellant Charles F. Peterson.

Jno. W. Arctander, for appellants M. A. Goar and others.

Charles Loring and P. H. Konzen, for respondents.

OPINION

BROWN, J.

This action was commenced in February, 1900, to recover upon a bond alleged to have been executed by defendants to secure the faithful performance by defendant Goar of his duties in the matter of winding up the affairs of a copartnership. The cause of action accrued some time in 1894, but the action was not commenced until the date stated in 1900. The complaint is in the usual form, and sets up the execution of the bond by defendants (Goar as principal and the other defendants as sureties), default in its conditions, and demands judgment for the amount therein stated. Defendants interposed an answer on March 8, 1900, in which they alleged that the bond declared upon in the complaint was a joint, and not a joint and several, bond; that it was executed by defendants and one Charles F. Peterson jointly; that Peterson was then living, residing in Kittson county, within the jurisdiction of the court, but had not been made a party to the action, nor served with the summons therein. Defendants further alleged that by reason of the nonjoinder of Peterson there was a defect of parties defendant, and insisted that the action be abated and dismissed.

No proceedings were thereafter had by plaintiff for the purpose of bringing Peterson in as a party until December 10, 1903, a period of about three and a half years after plaintiff was informed by the answer that Peterson was a necessary party. On that date Charles Loring, acting as attorney for plaintiff, though he was not the attorney of record, appeared before the court, and procured from Judge Watts, one of the judges of the district in which the action was pending, without notice to either of the defendants, an order making Peterson a party to the action, and requiring him to appear and answer the complaint therein. Thereafter defendants moved before Judge Grindeland, associate of Judge Watts, on various grounds to vacate the order making Peterson a party, which was denied. At the time of making that order the court made a further order permitting the plaintiff to amend the complaint in such respects as he might desire.

The case comes to this court (1) on the appeal of Peterson from the order making him a party to the action, and (2) on the appeal of defendants from the order denying their motion to vacate and set aside the order making Peterson a party, from that order, and also from the order permitting plaintiff to amend his complaint. Plaintiff, on the hearing in this court, moved to dismiss both appeals on the grounds (1) that an ex parte order, such as that involved here, making Peterson a party to the action, is not appealable; and (2) that the appeal of defendants should be dismissed for duplicity, it being an appeal from three separate orders.

We think the motion to dismiss the appeal from the ex parte order should be, and it is, granted. Such orders are not, as a rule, appealable. State v. District Court, 52 Minn. 283, 53 N.W. 1157. The reasons why such orders are not appealable are fully discussed in the case cited, and need not to be repeated. But we do not concur in the contention that the appeal of defendants should be dismissed for duplicity. It is true that the appeal is from three independent orders, but this is not objectionable. It is clear that the order refusing to vacate the ex parte order is appealable, and the appeal should not be dismissed merely because appellant includes in his notice an appeal from other nonappealable orders. The motion to dismiss defendants' appeal is denied.

The serious question with which we are confronted on the merits of the case is whether the court was justified in ordering Peterson made a party to the action, and in denying defendants' motion to vacate the order made for that purpose. The general rule of practice applicable to the amendment of pleadings and proceedings in actions should govern and control the decision of this question. Such rule requires parties to proceed with reasonable diligence in applying for amendments. It is said in 1 Enc. Pl. & Pr. 522 that, where a party has...