Taylor v. Stockwell

Citation145 P. 743,22 Wyo. 492
Decision Date18 January 1915
Docket Number774
PartiesTAYLOR v. STOCKWELL ET AL
CourtWyoming Supreme Court

Rehearing Denied April 6, 1915, Reported at: 22 Wyo. 492 at 512.

ERROR to the District Court, Laramie County; HON. WILLIAM C MENTZER, Judge.

The action was brought by Reuben Stockwell and Jess W. White against William Taylor. Judgment was rendered for the plaintiffs and the defendant brought error. The material facts are stated in the opinion.

Reversed and remanded.

Charles L. Rigdon, Herbert V. Lacey and John W. Lacey, for plaintiff in error.

The action is one to recover certain funds and the value of certain property transferred to the plaintiff in error defendant below, under threats of criminal prosecution. The amended petition shows that a part of the money was transferred to defendant by Stockwell, a part by White, a part by the latter's wife, and that certain personal property was transferred to the defendant by White, including an order for a balance due to him. Such petition also states the facts leading up to such transfer under threats, as alleged, of the money and property by the different persons aforesaid. There was a misjoinder of parties plaintiff. The question was first raised by demurrer, and afterward by answer, and on the trial by requested instructions based upon the evidence. The demurrer should have been sustained, for the amended petition alleges separate causes of action in favor of the plaintiffs severally, if any cause of action is set forth at all. White could not participate as plaintiff in a suit brought by Stockwell for the value of the saddle which the latter transferred to the defendant, whether or not the threat was procured by threats or false representations, nor could Stockwell recover for the transfer of personal property to the defendant by White, for that property belonged to White, and Stockwell had no interest in it. The same is true as to the recovery of money due from the defendant to White which White released by his order to the defendant, as alleged in the petition. It appears upon the face of the petition, and particularly from the evidence, that the defendant dealt with the plaintiffs individually; that the amount which each paid and delivered to the defendant was paid and delivered by each plaintiff individually; that the representations and threats were to each individually; that the cause of action for the money covered by the check of Stockwell was based upon a tort, viz: inducing the transfer of that money to the defendant by threats and false representations made to Stockwell individually. And likewise, if there was any cause of action for the check given to the defendant by White it would result from a tort committed upon White personally. (Schaeffer v. Marienthal, 17 O. St. 184; Utterback v. Meeker, 16 Wash. 185, 47 P. 428; Hynes v. Farmers' L. & T. Co., 9 N.Y.S. 260; Shull v. Barton, 56 Neb. 716, 77 N.W. 132; Brownell v. Irwin, 25 Ind.App. 395, 58 N.E. 263; Lewis v. Eshleman, 57 Ia. 633, 11 N.W. 617; Bank v. Walker, 7 Kan.App. 748, 53 P. 379; Coryton v. Lithebye, 2 Saund. 112, 117; Hinkle v. Davenport, 38 Ia. 355). Upon the uncontradicted facts the plaintiffs were not entitled to recover anything. In addition to the presumptions as to the defendant's ownership of the gold found in his cellar by the plaintiffs, there is direct testimony of both the defendant and his wife that the gold was his property and was placed in the cellar by him. Moreover, he produced a book kept by him showing the amount which he deposited there from time to time. There is no other explanation of the manner in which the gold came into the cellar, nor how any other person could have conceived the idea or executed it of hiding the gold in the cellar. While the plaintiffs produced evidence for the purpose of impeaching the testimony of the defendant and his wife by an attempt to show contradictory statements, such statements, if made, are not sufficient for the purpose of impeachment, and clearly do not prove that the gold was not owned by the defendant in whose possession it was found.

It was error to admit statements made by the plaintiffs and other persons out of the presence of the defendant. It was also error to exclude evidence offered by the defendant to impeach the witness Wood, who had testified at the former trial as to statements made by defendant, by showing his reputation for truth and veracity in the several different places where he had previously resided from time to time, it appearing that he frequently moved from place to place without, apparently, any permanent place of residence. (2 Wigmore on Ev. Sec. 928; People v. Abbott, 19 Wend. 192; Brown v. Perez, 89 Tex. 282, 34 S.W. 725; Alford v. State, 47 Fla. 1, 36 So. 436; Prater v. State, 107 Ala. 26, 18 So. 238; Sleeper v. Van Middlesworth, 4 Denio, 431; Rathbun v. Ross, 46 Barb. 127; Stevens v. Rodger, 25 Hun, 54; Craft v. Barron, 121 Ky. 129, 88 S.W. 1099; Watkins v. State, 82 Ga. 231, 8 S.E. 875; Mynatt v. Hudson, 66 Tex. 66, 17 S.W. 396). And evidence was also competent and admissible to show the reputation of the witness after testifying at the former trial, that being the evidence under consideration, which was offered because of his absence. (2 Wigmore on Ev., Sec. 929; Dollner v. Lintz, 84 N.Y. 669; 1 Greenleaf's Ev. (16th Ed.), Sec. 461d; 21 Kan. 18).

B. F. Griffith and Wilfrid O'Leary, for defendants in error.

The gist or gravamen of the action was the ownership of the gold coin, and the question of law was who, as between the plaintiffs and the defendant, were entitled to its custody that is, whether the owner of the soil or the finders. This question was settled by the court in favor of the plaintiffs as the finders of the coin, and that decision seems to be satisfactory to plaintiff in error, for the matter is not mentioned in his brief. The plaintiffs were proper parties to bring the suit and were properly joined. The coin belonged to them jointly, and until a final division they had a joint interest and could pursue only a common remedy to protect their interests. (Tapscott v. Williams, 10 Ohio 442; Choteau v. Raitt, 20 Ohio 132). The checks were upon joint undivided property, although upon deposits to individual credit, and such checks as well as the chattels given to the defendant were given to replace joint expenditures from a joint fund. There being a joint interest the plaintiffs were properly joined. (1 Story's Eq. Pl. Sec. 76 c; 15 Ency. Pl. & Pr. 584; 30 Cyc. 118; Loomis v. Brown, 16 Barb. 325; Forester v. Lawson, 3 Bing. 455; Barrett v. Collins, 10 Moore, 446; Painter v. Land Co., (Mich.) 127 N.W. 739; Bank v. Hummel, 14 Colo. 259, 23 P. 986, 20 Am. St. 257, 8 L. R. A. 788; Comp. Stat. 1910, Sec. 4332; Robinson v. Smith, 3 Paige, 222; Alston v. Jones, 3 Barb. 397; McCotter v. Lawrence, 4 Hun, 107; Chaplin v. Chaplin, 4 Edw. Ch. 228; Barbour on Part., 477; Dursley v. Fitzhardinge, 6 Ves. Jr., 251; Geekie v. Kirby C. Co., 106 U.S. 379; Porter v. Baldwin, 123 N.Y.S. 1043; Carlton v. Foley (Minn.) 126 N.W. 727; Cox v. Steed, (Tex.) 131 S.W. 246; 30 Cyc. 118). These cases and others assert the principle that all persons interested in a single cause of action may join therein, though their interests be distinct and several, and without regard to the extent of their respective interests; it being sufficient if all the plaintiffs have some common interest in respect to the same subject matter of the suit, and each is interested in the same relief asked by the other or some part of it. The defendant was certainly not prejudiced or injured by the plaintiffs joining in the action, and a judgment will not be reversed where it appears that substantial justice has been done. (Ivinson v. Althrop, 1 Wyo. 71; Waldschmidt v. Terr., 1 Wyo. 149; David v. Whitehead, 13 Wyo. 189; Myers v. Farrington, 18 Ohio 72; Webster v. Ry. Co., (Mo.) 22 S.W. 474; Cinfel v. Malena (Neb.) 93 N.W. 165; 30 Cyc. 83; Inman v. Lumber Co., (Cal.) 112 P. 560; 2 Cyc. 632). The rule as to joinder of parties is a rule of convenience--a rule of discretion rather than of absolute right. (30 Cyc. 117; Birdsong v. Birdsong, 2 Head, (Tex.) 289; Wiser v. Blackly, 1 Johns. Ch. 438; Elmendorf v. Taylor, 10 Wheat. 167; West v. Randall, 2 Mason, 181). The cases cited by plaintiff in error on this question of misjoinder are not in point upon the facts with the case at bar. The action is for recovery of damages, and the damages sustained are, without dispute, the amount or value of the property jointly found by the plaintiffs, defendants in error here. The instructions offered by defendant on the question of misjoinder were properly refused, for the evidence shows that there had not been a division or settlement between the plaintiffs of the money found by them. The jury heard the testimony of the witnesses and must be presumed to have properly determined as to their credibility, and the evidence justifies the verdict. A verdict based on conflicting evidence will not be disturbed. (Martin v. Dowd, 8 Ida. 453, 69 P. 276; O'Brien v. Foglesong, 3 Wyo. 57; Edwards v. Murray, 5 Wyo. 153; Kimball Co. v. Payne, 9 Wyo. 441; Harden v. Card, 15 Wyo. 217; R. R. Co. v. Morris, 16 Wyo. 308; Slothower v. Hunter, 15 Wyo. 189). Some of the objections to the admission of evidence now complained of were not incorporated in the assignment of errors, but if the matter was before the court we think it sufficient to say that the conversations testified to were not between the witness and third parties, and that where the objection follows the answer a motion to strike is the only proper objection that can be considered. (Abbott's Tr. Brief, 151, 244; Malm v. Thein, 66 N.W. 650; Lellman v. Mills, 15 Wyo. 149). Again, a judgment will not be reversed for the admission of immaterial...

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