Williams v. Pacific Surety Co.

127 P. 145, 66 Or. 151, 1912 Ore. LEXIS 283

• Court: Oregon Supreme Court
• Decided: October 22, 1912
• Status: Published

Opinions

Mr. Justice McBride

delivered the opinion of the court.

This appeal presents but one question: Can the plaintiff bring this action without joining his co-obligee in the bond as a plaintiff?

1. At common law a joint obligee could not sue in his own name, but could join his co-obligee as plaintiff even against his remonstrance by giving a bond to save him harmless from costs. The same rule prevailed in many of the states, and especially prior to the adoption of code procedure: 1 Chitty, Pl. 11; Petrie v. Bury, 3 Barn. & C. 353; Vernon v. Jeffreys, 2 Stra. 1146; Ingham Lumber Co. v. Ingersoll Co., 93 Ark. 447 (125 S. W. 139, 20 Ann. Cas. 1002); Gray v. Wilson, Meigs (Term.), 394; Sweigart v. Berk, 8 Serg. & R. (Pa.) 308; Darling v. Simpson, 15 Me. 175.

2. But at common law a defendant could not counterclaim a demand so as to obtain an affirmative judgment against the plaintiff for anything but costs, the amount of which could be readily estimated, so that it was not difficult for the court to fix the amount of a bond which would safely protect dn unwilling coobligee against any liability which might result from a failure of an action in which he was included as a plaintiff. Under our code counterclaims are allowed, and an affirmative judgment may be had thereon without limit. It would, therefore, be impossible for the court in advance to fix, with any approximation to certainty, the amount of a bond which would protect an unwilling plaintiff from the possible consequences of an action begun in his name.

3. Again, at common law, only one judgment could be given, namely, a judgment in favor of all the plaintiffs or all the defendants, or vice versa. In this state, the court may give judgment for or against one or more of several defendants, or for or against one or more plaintiffs, as justice may require, and determine the ultimate rights of the parties between themselves: Section 41, L. O. L.

4. Article I, Section 10, of our Constitution provides that “every man shall have remedy by due course of law for injury done him in person, property or reputation,” and in pursuance of this provision (Section 983, L. O. L.) provides that “when jurisdiction is, by the organic law of this state, or by this code, or by any other statute conferred upon a court or judici-al officer all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of the proceeding be not specifically pointed out by this code, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code. ’ ’ This wipes out common-law procedure, as such, with all its delays and technicalities, and léaves the court free to adopt such common-law procedure when in conformity with the spirit of the code, and to reject it when a procedure better calculated to faciliate the administration of justice presents itself. In this state no provision is expressly made in the code for compelling an unwilling co-obligee to join as a plaintiff in an action at law. By the demurrer the making of the bond, the breach, and the injury to plaintiff are admitted. Considered apart from the common-law holdings of the courts on this subject, the plain, speedy mode of procedure would appear to be to bring the unwilling co-obligee in as a defendant and compel him to litigate his rights. By this course nobody is injured or defrauded. The defendant can set up any defense here that it could have had he appeared as a plaintiff. Procedure is not the end for which law was instituted, hut the means by which justice may be administered in an orderly manner; and where a particular form of procedure is not prescribed by the code, as in this case, it is the duty of the court to pursue that which will secure the rights of all the parties, and an orderly trial of the case, and we think this has been done in the case at bar.

The judgment of the Circuit Court is affirmed.

Affirmed.