Skiff v. Cross

Dillon, J.

i. sminnss: S-Spe?fyreceived I. The name of the payee of the county orders, levied upon by the sheriff, in whose possession it was found, what notice, if any, the defendant or sheriff had of the rights of Daniel Mosier ' thereto are not stated. (Upon this point see Allison & Crane v. King, ante, and authorities there •cited and statutory provisions there referred to.)

*461 As to the legal nature of county orders see Clark v. Des Moines ( 19 Iowa, 199 ), and Clark v. Polk County (Id., 248).

If the property in the order was really in Daniel Mosier, and if it was not for any reason subject to be levied on or appropriated toward the payment of the defendant’s execution against John W. Mosier, and it was nevertheless so levied on or appropriated, Daniel Mosier might (if not cut- off' by his own laches or if not estopped) have replevied it from Cross or have sued him for its value.

In other words, the right of Cross to .the order would not be such as to exempt him from the obligation to surrender it to the real owner or to account to him for its value. Of course, if Cross thus lost it, he could have his judgment revived to that extent. Vannice v. Bergen, 16 Iowa, 555; Seevers’ Admr. v. Hamilton, 6 Id., 199 ; Chambers v. Cochran, 18 Id., 160; Rev. § 3321; County of Polk v. Sypher, 17 Iowa, 358 .

In this appeal, it must be taken to be true that Daniel was the real owner of the order, and that it was not, for any reason, subject to defendant’s judgment against John W. We say this must be taken as true, because it is averred that Daniel duly recovered the amount thereof against the sheriff and the plaintiffs as his sureties, and the demurrer does not make the objection that Daniel’s ownership of the order, or the facts which show such ownership, or from which it may be deduced, are not sufficiently stated in the petition. We cannot notice objections not made by the demurrer. Now, if Cross would be liable in respect to the order, if he had been proceeded against directly by Daniel Mosier, the owner of it, what good reason can be given why he should not be liable to the plaintiffs ? We can discover none. Daniel had his election to go against Cross, or against the sheriff and his sureties. He chose to proceed against the sheriff and his.sureties, and *462 the sureties were compelled to pay him. Is it any greater hardship on Cross to pay the amount of the order to the sureties than it would have been to have paid it directly to Daniel?

Is it not equitable to treat the sureties who have paid to Daniel, as substituted by operation of law to Daniel’s right as against Cross ? The ground of Cross’ liability is, that he has received money to which he has no right or claim, and for which plaintiffs have been compelled to account.

We are of opinion that the first ground of the demurrer was not well taken, viz., that, if plaintiffs have any cause of action, it is against Hull, their principal, and that, if Cross is liable on the facts stated in the petition, he is liable to Hull alone. Why liable to Hull alone? Hull has paid nothing. If Cross should refund to any one, it should be to the plaintiffs, who paid, rather than Hull, who did not.

If, for any reason, this order was subject to defendant’s judgment against John W., or if Daniel had unreasonably delayed to assert his claim to it, so that defendant was injured by the subsequent insolvency of his debtor or otherwise,' such facts should have been set up by answer. The petition, as to the objections set down against it in the demurrer, was prima facie sufficient. We admit that the judgment of Daniel Hosier against the plaintiffs would not conclude Cross, certainly not unless he had been notified of the action, so as to have had an opportunity to have defended it, or to have shown therein that the county order was subject to his judgment. See, on this point, Gardner v. Cole, ante, and cases cited; Charles v. Hos kins, 14 Iowa, 471 ; S. C., 17 Id., 329.

On this branch of the case we remark that, if the objection had been properly made by the demurrer or by motion, we might have been required to hold that Daniel’s *463 ownership of the order and its non-liability to be. subjected to defendant’s judgment, were not sufficiently alleged.

II. The next point made by the appellant is, that there is a misjoinder of parties plaintiff in this : that if sureties pay money for their principal they cannot have a joint action like the present for the whole amount, but each must bring a several action for the amount paid by him.

Our statute provides “that all persons” haying an interest in the subject of the action and in obtaining the relief demanded, may be -joined as plaintiffs, except where-it is otherwise provided in this code.” Eevision, § 2759 ; and see authorities there cited.

This .section clearly authorizes the joinder of the plaintiffs. "What good reason can be given why we should hold that each must bring a separate action, and thus vex the defendant with several suits instead of one? Under the section quoted the plaintiffs may join'; or they might, as heretofore, (see 1 Lead. Oas. in Equity, 3d ed., 165, and cases cited) have brought their separate action each for the amount he paid. • '

Affirmed.