The County of Stark In the State of North Dakota, a Municipal Corporation v. Mischel

• Decision Date: 16 February 1916
• Citation: 156 N.W. 931,33 N.D. 432
• Court: North Dakota Supreme Court

156 N.W. 931

33 N.D. 432

THE COUNTY OF STARK IN THE STATE OF NORTH DAKOTA, a Municipal Corporation, v. ADAM F. MISCHEL, Dominick Wetzstein, Thomas Bran, Adam Forster, Jos. Kilzer, Delbert Hughes, National Surety Co. of New York, a Corporation, Frank A. Roquette, T. F. Murtha, Peter F. Berringer, and J. P. Berringer

Supreme Court of North Dakota

February 16, 1916

Rehearing denied March 18, 1916.

From an order of the District Court of Stark County, Crawford, J overruling demurrer, defendants appeal.

Affirmed.

Order affirmed, with costs.

Engerud Holt, & Frame and Lawrence & Murphy, for appellant.

The complaint states various separate causes of action, some in tort, some upon contract, and others seeking equitable relief, and against different defendants, not of the same class, the causes of action not common to all, and the liability of defendants, if any, being separate and distinct. Such a complaint cannot stand the ordinary test of pleadings. Mares v. Wormington, 8 N.D. 333, 79 N.W. 441; Taugher v. Northern P. R. Co. 21 N.D. 111, 129 N.W 750; Keep v. Kaufman, 56 N.Y. 332; 1 Enc. Pl. & Pr. 186; Wiles v. Suydam, 64 N.Y. 177; New York & N. H. R. Co. v. Schuyler, 17 N.Y. 604; Young v. Young, 81 N.C. 95; Adams v. Bissell, 28 Barb. 386; Anderson v. Hill, 53 Barb. 245; Teall v. Syracuse, 32 Hun, 332; Hodges v. Wilmington & W. R. Co. 105 N.C. 170, 10 S.E. 917; Brown v. Rice, 51 Cal. 489; Bailey v. Dale, 71 Cal. 34, 11 P. 804; Feder v. Field, 117 Ind. 386, 20 N.E. 129; Cosgrove v. Fisk, 90 Cal. 75, 27 P. 56; Sutherland, Code Pl. p. 128; Davis v. Novotney, 15 S.D. 118, 87 N.W. 582; Fraley v. Bentley, 1 Dak. 25, 46 N.W. 506; Story, Eq. Pl. § 2795; Daniel, Chancery Pl. & Pr. 395; Winslow v. Jenness, 64 Mich. 84, 30 N.W. 908; Bowman v. Purtell, 15 Jones & S. 403; Thompson v. St. Nicholas Nat. Bank, 61 How. Pr. 163; Loup v. California Southern R. Co. 63 Cal. 99; Barham v. Hostetter, 67 Cal. 272, 7 P. 689; Alger v. Scoville, 1 Code Rep. N. S. 303, 6 How. Pr. 131; Warth v. Radde, 18 Abb. Pr. 396, 20 How. Pr. 230; Butt v. Cameron, 53 Barb. 642; Smith v. Geortner, 40 How. Pr. 185; Newcombe v. Chicago & N.W. R. Co. 55 Hun, 607, 8 N.Y.S. 366; Jasper v. Hazen, 2 N.D. 404, 51 N.W. 583.

A claim arising out of an alleged tort cannot be joined in the same action with a claim for money had and received; causes ex delicto cannot be joined with causes ex contractu. Teem v. Ellijay, 89 Ga. 154, 15 S.E. 33; Croghan v. New York Underwriters' Agency, 53 Ga. 112; Hart v. Metropolitan Elev. R. Co. 15 Daly, 391, 7 N.Y.S. 753; French v. Salter, 17 Hun, 546; Rizer v. Davis County, 48 Kan. 389, 29 P. 595; Hoye v. Raymond, 25 Kan. 665; Chiradella v. Bourland, 32 Cal. 588; Loup v. California Southern R. Co. 63 Cal. 99; Sheldon v. The Uncle Sam, 18 Cal. 527, 79 Am. Dec. 193; Sacramento v. Dunlap, 14 Cal. 421; Barnes v. Metropolitan Street R. Co. 119 Mo.App. 303, 95 S.W. 971; Code Civ. Proc. § 484, subdiv. 9; McClure v. Wilson, 13 A.D. 274, 43 N.Y.S. 209.

Even if such causes could be united, still the complaint is open to the criticism that they are not separately stated, as required by our Code. Rev. Codes 1905, § 6877, Comp. Laws 1913, § 7466; Niven v. Peoples, 23 N.D. 207, 136 N.W. 73.

Causes of action joined in a complaint must affect all parties alike. 1 Enc. Pl. & Pr. 209; Gray v. Rothschild, 112 N.Y. 668, 19 N.E. 847; Foreman v. Boyle, 88 Cal. 290, 26 P. 94; Barham v. Hostetter, 67 Cal. 274, 7 P. 689; Winslow v. Jenness, 64 Mich. 84, 30 N.W. 905; First Nat. Bank v. D. S. B. Johnson Land Mortg. Co. 17 S.D. 522, 97 N.W. 748; Hall v. Susskind, 109 Cal. 209, 41 P. 1012; McCarty v. Fremont, 23 Cal. 197; Niven v. Peoples, 23 N.D. 207, 136 N.W. 73; Simmons v. Fairchild, 42 Barb. 404; Victory, Webb, etc. Mfg. Co. v. Beecher, 55 How. Pr. 193; Sleeper v. Baker, 22 N.D. 391, 39 L.R.A.(N.S.) 864, 134 N.W. 716, Ann. Cas. 1915B, 1189.

H. A. Burgeson, L. A. Simpson, W. F. Burnett, and Thos. H. Pugh, for respondents.

The county officials have no authority to compromise a claim the county has against a solvent debtor, or to employ the state's attorney to perform, for extra remuneration, duties already incumbent upon him as such officer, and for which he is paid a salary. Fox v. Walley, 13 N.D. 611, 102 N.W. 161; Storey v. Murphy, 9 N.D. 115, 81 N.W. 23; Pierson v. Minnehaha County, 28 S.D. 534, 38 L.R.A.(N.S.) 261, 134 N.W. 212; Wilson v. Otoe County, 71 Neb. 435, 98 N.W. 1050; Platte County v. Gerrard, 12 Neb. 244, 11 N.W. 298; Logan County v. Jones, 4 Okla. 341, 51 P. 565; Brome v. Cuming County, 31 Neb. 362, 47 N.W. 1050; State v. Stockwell, 23 N.D. 70, 134 N.W. 767; State ex rel. Braatelien v. Drakeley, 26 N.D. 87, 143 N.W. 768; Comp. Laws 1913, § 3376, subdivs. 3, 9-13, § 3492.

Where a number of defendants are joined, and where the damages sought grow out of one wrong common to all, the mere fact that the degree of liability of one defendant may be different from that attaching to another makes no difference and affords no legal ground for objection. 23 Cyc. 432; Schilling v. Black, 49 Kan. 552, 31 P. 143; State ex rel. Cook v. Smith, 119 N.C. 350, 25 S.E. 958; Cummings v. American Gear & Spring Co. 87 Hun, 598, 34 N.Y.S. 541; Fish v. Chase, 114 Minn. 460, 131 N.W. 631; State use of Clendenin v. Schneider, 35 Mo. 533; Holeran v. School Dist. 10 Neb. 406, 6 N.W. 472; Greenberg v. Whitcomb Lumber Co. 90 Wis. 225, 28 L.R.A. 439, 48 Am. St. Rep. 911, 63 N.W. 93; Council Bluffs Sav. Bank v. Griswold, 50 Neb. 753, 70 N.W. 376; Champlin Bros. v. Sperling, 84 Neb. 633, 121 N.W. 976; Richard v. Detroit, R. R. & L. O. R. Co. 129 Mich. 458, 89 N.W. 52; 23 Cyc. 424; Bliss, Code Pl. § 118; Bendernagle v. Cocks, 19 Wend. 207, 32 Am. Dec. 448; Comp. Laws 1913, § 7407.

The pleading will be liberally construed, and if it presents facts sufficient for a recovery, allegations of fact sufficient to reasonably apprise the defendants of the nature of the claim against them, it will be upheld as against demurrer. First Nat. Bank v. Messner, 25 N.D. 263, 141 N.W. 999; Golden Valley Land & Cattle Co. v. Johnstone, 21 N.D. 97, 128 N.W. 690; Randall v. Johnstone, 20 N.D. 493, 128 N.W. 687; Weber v. Lewis, 19 N.D. 473, 34 L.R.A. (N.S.) 364, 126 N.W. 105; Klemik v. Henricksen Jewelry Co. 122 Minn. 380, 142 N.W. 871; Vukelis v. Virginia Lumber Co. 107 Minn. 68, 119 N.W. 509; Bieri v. Fonger, 139 Wis. 150, 120 N.W. 862; Nugent v. Teachout, 67 Mich. 571, 35 N.W. 254; Casey v. American Bridge Co. 95 Minn. 11, 103 N.W. 623; Danielson v. Garage Equipment Mfg. Co. 151 Wis. 492, 139 N.W. 443; Purcell v. St. Paul F. & M. Ins. Co. 5 N.D. 100, 64 N.W. 943.

The demurrer is joint, and as such it must be overruled, if the complaint states a cause of action against any of the defendants. Dalrymple v. Security Loan & T. Co. 9 N.D. 306, 83 N.W. 245; State v. Brooks-Scanlon Lumber Co. 128 Minn. 300, 150 N.W. 912; Rochford v. School Dist. 17 S.D. 542, 97 N.W. 747; Evans v. Fall River County, 9 S.D. 130, 68 N.W. 195; Millerke v. Reiley, 31 S.D. 342, 141 N.W. 136; Burk v. Muskegon Mach. & Foundry Co. 98 Mich. 614, 57 N.W. 804; Clark v. Lovering, 37 Minn. 120, 33 N.W. 776; Mark Paine Lumber Co. v. Douglas County Improv. Co. 94 Wis. 322, 68 N.W. 1013; Boyd v. Mutual Fire Asso. 116 Wis. 155, 61 L.R.A. 918, 98 Am. St. Rep. 948, 90 N.W. 1086, 94 N.W. 171; St. Croix Timber Co. v. Joseph, 142 Wis. 55, 124 N.W. 1049; Coffee v. Dorwart, 31 S.D. 102, 139 N.W. 776.

GOSS, J. BRUCE, J., dissenting.

OPINION

GOSS, J.

This is an action brought against the former county commissioners and state's attorney of Stark county and their bondsmen. A demurrer for misjoinder of defendants and causes of action was overruled, and from which this appeal is taken. The complaint sets forth the official capacity of the defendants their qualification as such officials, and that certain defendants are sureties on the official bonds of said other defendants. That there existed in favor of the county a cause of action against one White, formerly county auditor, and the Northern Trust Company as surety on White's bond, and upon which cause of action suit had been brought and "in which said action judgment was then about to be entered in favor of the plaintiff and against said White and Northern Trust Company for $ 9,239.13, all of which said defendant officials (county commissioners and state's attorney) then and there well knew." "That on the 18th day of February, 1913, the defendant commissioners in violation of their several duties and trusts as public officers of the plaintiff unlawfully engaged defendant Murtha (state's attorney) to collect said claim, and for his commission and services in that behalf unlawfully agreed to pay him one half of all such moneys so collected," and "acting as the board of county commissioners of Stark county adopted a resolution embodying the terms of said unlawful agreement therein;" "that it was then and there the duty of said defendant Murtha, as the state's attorney of the plaintiff, to perform the work aforesaid without receiving therefor any additional compensation, all of which said defendants then and there well knew." That the next day "February 19, 1913, upon trial of the action so instituted by the plaintiff herein as plaintiff against the said White and Northern Trust Company as defendants, the plaintiff recovered judgment against the said White and Northern Trust Company as defendants in the sum of $ 9,239.13, which judgment was duly entered and docketed." That the Northern Trust Company paid plaintiff $ 9,589.42, in satisfaction of said judgment. That before said payment and on September 8, 1913, "in furtherance of the alleged pretended agreement hereinbefore set forth, and without any other or further consideration, and in violation of their duty and trust as officials of the plaintiff...