Aulbach v. Dahler

Adverse Party — Section 4808 of tiie Revised Statutes Construed. — By the words “adverse party,” as used in section 4808 of the Revised Statutes, is meant every party whose interest in the subject matter of the appeal will be affected by a modification or reversal of the judgment or order appealed from, irrespective of whether he be a plaintiff or defendant or intervener. Notice of Appeal — Service of. — The codefendants of appellant in this action are not adverse parties on whom notice of appeal must be served, as the judgments rendered against them can in no wise be affected by a modification or reversal of the judgment against appellant. (Syllabus by the court.)

APPEAL from District Court, Shoshone County, on a rehearing of the motion to dismiss the appeal. “The rule that a party coming into court asserting one cause ■of action cannot recover on another and different one is ... . essential' to the orderly administration of justice and the protection of the rights of litigants. Lawyers could not safely •advise their clients, and parties would frequently be misled if •any other rule was admitted.” (Reed v. McConnell, 133 N. Y. 425, 31 N. E. 22; 2 Wait’s Practice, 285-289; Stephen’s Pleading, 251-255,262, 263; Bliss on Code Pleading, secs. 149, 150.) “Every pleading must proceed upon some definite theory, and a party must stand or fall upon the theory of his case, as he presents it in his pleading.” (Armacost v. Lindley, 116 Ind. 295, 19 N. E. 138.) If the complaint is to be considered as •one counting upon the liability of a stockholder under section 2609 of the Revised Statutes, still I submit that the judgment against Dahler should be modified by reducing it by one-half •of the amounts due from the bank upon the various certificates of deposits and drafts issued prior to October 23, 1893, the date of the filing of the original complaint. The liability of the stockholder is not that of the corporation; it is an individual liability created by the statute. He is not a party to an instrument of indebtedness executed by a corporation, and is not liable thereon, but is liable only by force of the statute, and to the extent limited by it. (Winona Wagon Go. v. Bull, 108 Cal. 1, 40 Pac. 1077; Banlc of San Luis Obispo v. Steamship Co., 103 ■Cal. 594, 37 Pac. 499; Hunt v. Ward, 99 Cal. 612, 37 Am. St. Rep. 87, 34 Pae. 335; Bedington v. Cornwell, 90 Cal. 49, 27 Pac. 40, 44; Hyman v. Coleman, 82 Cal. 650, 16 Am. St. Rep. 178, 23 Pac. 62; Moore v. Boyd, 74 Cal. 167, 15 Pae. 670; Green v. Bechman, 59 Cal. 545.) A general demurrer was filed that the complaint did not state facts sufficient to constitute a cause of action. This may be taken advantage of at any time during the action, and may even be objected to for the first time in the supreme court, and is never waived. (Miller v. Pine Min. Co., 3 Idaho, 493, 35 Am. St. Rep. 289, 31 Pae. 803; Greathouse v. Heed, 1 Idaho, 482; Idaho Rev. Stats., sec. 4178.) The notice of appeal was not served upon either Charles Hussey or the Bank of Murray. That these parties would be affected by any order of the appellate court is apparent upon the face of the proceedings. The amount for which either of them would be liable in this action would be determined by the ■amount of liability which Mr. Dahler, the appellant, would have to assume. They should, therefore, have been served with notice of appeal or a legal reason shown for not serving them. (Coffin v. Hdgington, 2 Idaho, 627, 23 Pac. 80; Jones v. Quantrell, 2 Idaho, 153, 9 Pac. 418.) Double pleading, or duplicity in pleading in a declaration (or complaint) consists in joining in one and the same count, different grounds of action, of different natures, or of the same nature to enforce only a single right of recovery. This is a fault in pleading, only because it tends to perplexity and confusion, and is, therefore, ■only a fault in form. (1 Saunders on Pleading, 58, note 1; Stephen’s Pleading, 266; Coke on Littleton, 304.) The rule as to duplicity in pleading in answer or plea differs from the rule as applied to complaints. (See Bouvier’s Law Dictionary, 453.) We have no contention with counsel on his legal propositions, as to the rules of pleading, so far as the general statements are concerned, but he loses sight of the fact that our legislature has so far modified the rules of common-law pleading as to leave the pleadings largely within the discretion of the trial judge. (Idaho Eev. Stats., secs. 4225-4227; 1 Estee’s. Pleadings, sees. 191, 205; Stoddard v. Threadwell, 26 Cal. 294.) Under our statute regulating the manner in which transfers of stock are to be made, no court, would allow any proof on this question except that which appears on the-books of the company, which were in evidence on the trial.. (Idaho Eev. Stats., see. 2611.) Whenever it appears that a party has been misled, the court may order the pleadings to. be amended upon such terms as may be just. The defendant should have advised the trial court when he discovered that he had been misled, and the court would thereupon, have ordered the pleadings amended. If the defendant did not so advise the court, then it was a waiver on his part of the right to compel an amendment, and an admission that the variance was not material, and the court, under section 4226 of theEevised Statutes, is authorized to direct, the fact to be found according to the evidence which is what the court did in the case at bar. (Estee’s Pleadings, sec. 205; Boyce v. California. Stage Co., 25 Cal. 471; Bell v. Knowles, 45- Cal. 193.)