Loomis v. Brown

16 Barb. 325, 1853 N.Y. App. Div. LEXIS 120

• Court: New York Supreme Court
• Decided: July 4, 1853
• Status: Published

Opinion

By the Court, Gridley, J,

The justice before whom the demurrer in this cause was argued held the complaint good, and overruled the demurrer. This is an appeal from his decision. The first three causes of demurrer have not been much ‘ dwelt upon.- In fact there is no ground for the objections raised in those points.

L The complaint sets' forth the nature of the' suit, so far as to say that an injunction was granted in it by a justice of this court; and it states that it was not only commenced but that' issues were joined in it and a judgment rendered therein. This is a sufficient statement. If it were not, it is the better opinion that after the parties have obtained an injunction- and stayed their. adversaries’ proceedings,- who have suffered damages thereby, it is too late for the plaintiffs in the first suit to set up as a defense to the suit on the injunction bond, a want of jurisdiction to grant the injunction.- They are estopped from raising that question.

II. The complaint alleges a service of the injunction; which, under the liberal rule prescribed for the interpretation of pleadings under the code,- means a service that is legal, and sufficient in law.

III. It has been held that a dismissal of the bill on the final, hearing of the cause includes, by force of the term itself, and of the law applicable to it, a determination that the party was not equitably entitled to the injunction.

IY. But the fourth ground of demurrer is the one on which the defendant principally relies.' This is based on an erroneous joinder of plaintiffs,- on the ground that the claims are distinct and separate, arising out of the Separate nature of their interests. The covenant is joint, and when that is so, it is said that the covenantees may sue jointly. (People v. Holmes, 5 Wend. 197. 10 B. Monroe, 372. Platt on Covenants, 130.) However that may be, we are now to determine this question, as it arises under the code of procedure, which abolished all distinctions between the forms of proceeding' in actions at law and suits in equity. With the view of embracing all cases, whether of law or equity, and of making them conform to' one general rule, the code provides, in the 117th section, that “all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title.” This is now the rule in all cases, whether such as were formerly the subjects of suits in equity or of actions at law; and" we are to administer it according to its spirit and true intent, however the practice may differ from the rule that heretofore has prevailed in actions at law. It is only necessary to advert to the fact that the rule prescribed by the code is applicable to all suits, and then consider the identity of the rule the code has adopted for the joinder of plaintiffs, with the rule as it prevailed in equity, to be convinced that we are now to hold the same rule applicable to both. In Milford’s Pleading it is said to be the constant aim of equity to do complete justice by settling the rights of all persons interested in the subject of the suit. For this purpose all persons materially interested in the subject ought generally to be made parties, dec. This rule, however, the learned writer proceeds to say, admits of many qualifications. (Mitf. Pl. by Edwards, 3d Am. ed. p. 164.) Among these qualifications the author cites the case of creditors suing (on behalf of themselves and others) the representatives of a deceased debtor, for an account and application of assets real and personal. (2 Ves. 313.) In our own court of chancery it has been held that several judgment creditors, having different and separate judgments, may join to set aside a fraudulent assignment, by which the property, real and personal, of a fraudulent debtor has been transferred, a part to one creditor and a part to others. (See Brown v. Ricketts, 2 John. Ch. Rep. 283 ; Brinkerhoff v. Brown, 6 Id. 139; Fellows v. Fellows, 4 Cowen, 682; Fish v. Howland, 1 Paige, 20; Egberts v. Wood, 3 Id. 517.) The cases of Fellows v. Fellows and Brinkerhoff v. Brown, are pertinent to show that the subject matter is identical in this case, with the point of litigation in those cases. The subject in thosecases was the property of the debtors fraudulently conveyed to other defendants ; and it was held to make no difference that the title of the several plaintiffs to their proportions was separate and distinct; and that the amounts to which they were respectively entitled, were also distinct and different; and that the amounts which the defendants would be respectively decreed to contribute would be different, depending on the value of the portions of the property of the debtor, each had fraudulently received. So here the subject of the action is the damage of the plaintiffs arising out 'of the injunction, which prevented them from proceeding in their business of floating logs upon the Black river to the mills in Dexter. This damage the defendants all concurred in producing, and all agreed jointly to pay. And it matters not that the damages of the defendant Gunn were different from those of Loomis and Kirby. They may be joined, with the same propriety and on the same principle, that two judgment creditors, having judgments of different dates and amounts may join in an action against the debtor and his fraudulent assignees. In fact there is an additional reason for the present plaintiffs joining ; and that is, the covenant to them jointly. This doctrine is reiterated, and the principle" reasserted, in the first of Barbour’s Ch. Reports. The chancellor there lays down the general rule as to the joinder of parties, and then states the exceptions, citing the case of Brinkerhoff v. Brown, (6 John. Ch. Rep. 139,) and several English cases. (1 Barb. Ch. Rep. 62.) It will be perceived that this case falls within the precise words of the section of the code, before cited. All have an interest in the “ subject of the action and the relief demanded,” that is, in the damages arising out of the operation of the injunction. It is not said to be a joint or an equal or even a common interest, but simply an interest in the subject of the action, with the view of doing full justice and settling the rights of all parties in interest, in one suit.

It has recently been decided in a court of law in England, that, under a statute which makes railroads responsible for the damages sustained by the widow and children of a deceased husband and father, killed by the negligence of the corporation or its agents, a suit lies, by the several parties entitled under the act, jointly ; and a verdict was rendered in the suit separately, for the widow and the children. This was a case at law, and I cite it to show that the legislature can by implication exercise a control over the proceedings in a court of justice, and that it regulates even the verdict, in a way wholly foreign to the well known rules applicable to ordinary proceedings of juries, and their verdicts.

[Jefferson General Term, July 4, 1853.

Gridley, W. F. Allen, Hubbard and Pratt, Justices.]

We think it was the manifest intent of the legislature to make a change in relation to parties in suits at law, and to assimilate the practice in that respect to the practice that had before then prevailed in courts of equity ; and we therefore affirm the decision of the justice at special term.