McBeth v. Van Sickle

6 Nev. 134

Opinion

By the Court,

Lewis, C. J.:

This action is brought upon an undertaking given in accordance with Sec. 104 of the Practice Act, which makes it the duty of an officer who has taken property in replevin to return it to the defendant upon the delivery to him by the latter of an undertaking “ executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property, in gold coin of the United States, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum, in gold coin of the United States, as may for any cause be recovered against the defendant.” The instrument here sued on was delivered to Bollen, the sheriff, for the benefit of McBeth, who was the plaintiff in the action of replevin. The defendants demurred to the complaint, assigning as a ground a misjoinder of parties plaintiff. The District Court overruled the demurrer, and upon failure of the defendants to answer, rendered judgment for the plaintiff.

Nothing in the law is clearer than that the demurrer should have been sustained. Bollen, the sheriff, having no interest whatever in the undertaking, McBeth alone is the party interested as plaintiff in this proceeding. (Curriac v. Packard, 29 Cal. 199.) Why, then, should Bollen be united with him ? The Practice Act declares that “ all persons having an interest in the subject of the ac tion, and in obtaining the relief demanded, may be joined as plaintiffs, except when otherwise provided' in this Act.” The converse of this provision, that none can unite who have not such interest, is undoubtedly the law. Bollen and McBeth having no interest in common should not have been united as plaintiffs. The demurrer should, therefore, have been sustained.

The judgment of the District Court must be set aside, with permission given the plaintiff to amend.