Talley v. Drumheller

• Citation: 115 S.E. 517
• Case Date: January 18, 1923
• Court: Supreme Court of Virginia

115 S.E. 517

talley et al.
v.
drumheller et al.

Supreme Court of Appeals of Virginia.

Jan. 18, 1923.

[115 S.E. 518]

Error to Circuit Court, Amherst County.

Detinue by D. P. Talley and others against Iverson E. Drumheller and others. Action dismissed on the plea in abatement filed by defendant J. T. Jones, and plaintiffs bring error. Reversed, and remanded for new trial.

Evans & Evans, of Amherst, and Caskie & Caskie, of Lynchburg, for plaintiffs in error.

Geo. E. Haw, of Richmond, for defendants in error.

WEST, J. This is an action in detinue to recover the possession of certain T rails, which had been used for a tramroad. This writ of error was awarded to a final judgment against the plaintiffs in error.

During the year 1918 the Drumhellers while in the employ of John T. Jones, removed 73, 084 pounds of T rails, which had been used for a tramroad, from the lands of the plaintiffs and placed them on a lot rented by I. L. Drumheller near Riverville, in Amherst county, where they were when the sheriff levied on them in this case. The rails which were taken from several tracts of land were put in one pile, so that it was impossible to determine which rails had been taken from the lands of Talley and which from the lands of the other plaintiffs. At the time they were taken away, the rails were owned by and in the possession of the plaintiffs, as follows: D. P. Talley, 36, 949 pounds; G. L. Hesson. 18, 645 pounds; C. A. Mitchell, 14, 311 pounds; and W. E. Harvey, 3, 179 pounds. At the time of the institution of the suit, the rails were so mixed and confused that the owners were unable to identify their own particular property, and therefore joined in one suit to recover all the rails en masse. The Drumhellers, residents of Amherst county, were made parties defendant because the rails were actually in their possession and under their control. John T. Jones, of Henrico county, was also made a party defendant, as the plaintiffs were advised that he claimed an interest in or title to the rails. He was served with process in the city of Richmond. Jones employed the Drumhellers at an agreed price per ton to remove and haul the rails from the lands of the plaintiffs and load same on board the cars to be shipped to Richmond according to his order.

Jones filed two pleas in abatement, and also filed his motion in writing to dismiss the plaintiffs' action, on the ground that the Drumhellers, being his employees, were improperly made codefendants, and because process was improperly served on him in Richmond. At the October term, 1919, Jones moved to abate the action because of misjoinder of parties, and the defendants demurred to plaintiffs' declaration on the ground that it showed four separate and distinct causes of action. At the April term, 1920, the court sustained Jones' demurrer, with permission to plaintiffs to amend. At the October term, 1920, the death of John T. Jones being suggested, the case was revived in the name of his executrix, whereupon the defendants filed their demurrer to the amended declaration on the ground there were four separate and distinct causes of action in favor of four separate and distinct parties included in one suit, and that detinue would not lie; the only appropriate action being trover and conversion. This demurrer was overruled, and the court proceeded to hear the case upon said pleas Nos. (1) and (2) in abatement. At the June term, 1921, the court sustained said pleas and dismissed the action with cost to the defendants.

The foregoing are the agreed facts in the case.

The three assignments of error involve the action of the court in sustaining John T. Jones' pleas in abatement Nos. (1) and (2), and in dismissing the entire proceeding as to the Drumhellers and John T. Jones. Plea No. (1) alleges that the court should not take cognizance of this action because Jones is the only proper defendant and because the Drumhellers are improperly made codefendants, as they were only employees of defendant Jones and never claimed possession of or interest in the rails, except as such. Plea No. (2) alleges that the court should not take...