Resor v. McKenzie, Sterrett & Co.

2 Disney (Ohio) 210

• Court: Ohio Superior Court, Cincinnati
• Decided: May 15, 1858
• Docket: No. 8,408
• Status: Published

Opinion

Storer, J.

Those of the defendants who are the makers-of the note, declared, as set up in their answer;.that McKenzie, their co-defendant, is bound in equity to- protect them from its payment, having, as they assert, assumed,, on a dissolution of the partnership, of which they were all members, to discharge all the debts of the firm-, especially this, note, which is secured by mortgage-upon,the property where their business was carried on, and being part of the original purchase money thereof.

They, therefore, ask that he may be compelled to comply with his agreement, and the premises mortgaged be charged with the payment of the debt in controversy.

After the dissolution it appears, McKenzie formed a new partnership, with Neff & Kilbreth, and the former having deceased, his interest is now owned by Brashears & Stettinius, who, it is alleged, have assumed to discharge the debt for which McKenzie is liable.

Those parties are all made defendants to the answer of Sterrett, Maltby & Keys, which is in the nature of a cross bill with the proper prayer for relief.

Kilbreth, McKenzie & Co. now demur.

The cause is stated to be that they can not be required to answer in this controversy.

"We can see no other ground, on which such a claim can be made, than the misjoinder of parties.

It is very clear, the several parties, made defendants to the answer, are liable to keep Sterrett, Maltby & Keys harmless from =the payment of these notes; and whenever the latter have paid them or either of them, they may bring their action, and subject the mortgaged property to discharge the debt, working out their equity through Resor’s mortgage.

As they are, inter se, the sureties of McKenzie, who became the owner of the property by their release, they are entitled to be subrogated to all the rights of Resor, and may well maintain their remedy for appropriate relief.

In this proceeding, they ask no more than they would be entitled to claim in another suit or proceeding, which would include the joinder of all the former parties, and create additional costs, without affording any advantage to either of these defendants, either in making their defense, if they have any, or in 'the settlement of their several rights.

The plaintiff makes no objection to the joinder of new defendants, and he could not with any propriety, as the answer stands. If he had filed his petition to foreclose his mortgage, all the parties -now before the court, must have been made defendants, and the same result will be practically obtained by the cross bill.

We can see no impropriety in the joinder of the defendants who have demurred, and we overrule the demurrer, and give leave to answer.

Demurrer overruled.