§ 25-318 — Necessary joinder; involuntary joinder; procedure

Nebraska § 25-318

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

Of the parties to the action, those who are united in interest shall be joined as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff cannot be obtained, he or she may be made a defendant, the reason being stated in the complaint.

Legislative History

Source: R.S.1867, Code § 42, p. 399; R.S.1913, § 7599; C.S.1922, § 8542; C.S.1929, § 20-318; R.S.1943, § 25-318; Laws 2002, LB 876, § 6. Annotations: 1. Joinder 2. Miscellaneous 1. Joinder Joint obligees must sue jointly in actions ex contractu. Hecker v. Ravenna Bank, 237 Neb. 810, 468 N.W.2d 88 (1991). This section states general rule as to joinder, to which there are statutory exceptions. O'Shea v. North Am. Hotel Co., 109 Neb. 317, 191 N.W. 321 (1922). Liability of defendants was joint and other parties interested with them should have been joined. Wolfenbarger v. Britt, 105 Neb. 773, 181 N.W. 932 (1921). Voluntary release of one of two joint makers of promissory note will release the other; demurrer for misjoinder. Banking House of A. Castetter v. Rose, 78 Neb. 693, 111 N.W. 590 (1907). In action on appeal bond running to joint obligees, failure by one obligee to join co-obligee as party justified dismissal of action. Harker v. Burbank, 68 Neb. 85, 93 N.W. 949 (1903). Alleging that a person is joined as defendant because he refused to join as plaintiff is sufficient. Union P. Ry. Co. v. Vincent, 58 Neb. 171, 78 N.W. 457 (1899). Parties jointly liable must be joined as defendants. Bowen v. Crow, 16 Neb. 556, 20 N.W. 850 (1884); Fox v. Abbott, 12 Neb. 328, 11 N.W. 303 (1882). Widow may bring action alone or jointly with her children for damage against all persons jointly and severally who furnish liquor causing damage. Kerkow v. Bauer, 15 Neb. 150, 18 N.W. 27 (1883); Roose v. Perkins, 9 Neb. 304, 2 N.W. 715 (1879). 2. Miscellaneous Assuming that plaintiff and guardian ad litem for incompetent defendant were united in interest, taxation of fee for guardian ad litem against plaintiff was unauthorized. Johnson v. Munsell, 170 Neb. 749, 104 N.W.2d 314 (1960). This section is applicable to appellate proceedings. Donisthorpe v. Vavra, 134 Neb. 157, 278 N.W. 151 (1938). Where assignment to plaintiff was of undivided interest in claim, subject to contingencies, plaintiff did not make separate case against defendant, in view of this section. Federal Land Bank of Omaha v. United States Nat. Bank, 13 F.2d 36 (8th Cir. 1926).