Continental Securities Co. v. Yuma National Bank

JOHN WILSON ROSS, J. This is an appeal from a judgment rendered in the superior court of Yuma county, wherein the plaintiff is appellee here, and the Continental Securities Company is appellant. In the original complaint the Yuma National Bank is named as plaintiff, and the Yuma Electric & Water Company, H. W. Blaisdell and the Continental Securities Company are named as defendants. The same parties are plaintiff and defendant, respectively, in the amended complaint. The amended complaint was filed on the twenty-fifth day of November, 1916, and shows an action brought to obtain judgment against the defendants Yuma Electric & Water — 14 — Company and H. W. Blaisdell, for the sum of $1,300 upon a promissory note executed by the Yuma Electric & Water Company and indorsed by said Blaisdell, and to recover $550 ■attorney’s fees, and to enjoin the defendant Continental Securities Company from taking possession of a crop of oranges and grapefruit upon the land described in said amended complaint; and it was further alleged that the plaintiff had sued out a writ of replevin and caused the sheriff to take possession of said property, and that the same was retaken by the defendant Continental Securities Company. To determine the sufficiency of plaintiff’s amended complaint and the demands therein made, herewith is inserted in full the following numbered paragraphs thereof, to wit; “(2) That on February 15, 1916, the defendant Yuma Electric & Water ComparLy executed and delivered to the plaintiff its promissory note in writing, whereby it promised and agreed to pay to the plaintiff the sum of $1,600.00 with interest thereon at the rate of 10 per cent, per annum from date until paid, on demand; which said note was made payable according to its terms, at the option of the holder, at the rate of $100 weekly. ... “(8) That to secure the payment of the principal sum and interest of said promissory note, and attorney’s fees as hereinafter set forth, according to its tenor and effect, the defendant H. W. Blaisdell mortgaged to the plaintiff the following described chattels and personal property belonging to him, the said Blaisdell, on the 15th day of February, 1916, by a good and sufficient instrument in writing, duly executed and delivered by the defendant Blaisdell to the plaintiff, and which said instrument was duly acknowledged and certified for record, and the said mortgagor and mortgagee duly made affidavit that said mortgage was bona fide and made without any design to defraud or delay creditors, which said affidavit was attached to said mortgage; and the same was duly and forthwith deposited and filed with the county recorder of Yuma county, state of Arizona, where the said chattels and personal property was then, and now is situate, and a minute of the said mortgage was duly made by said recorder in book kept by him for that purpose, to wit, Book 5 of Chattel Mortgages, p. 21. . . . “(11) That the defendant Continental Securities Company has entered into possession of said Yuma Heights Fruit — 15 — Farm, the land belonging to the defendant Blaisdell in said sections 28 and 33, and has unlawfully and without right taken possession of said mortgaged crop of fruit and is now in the possession of the same, and is picking and taking the same from the trees on said fruit-farm, and is engaged in shipping said mortgaged fruit out of the state of Arizona, to the great and irreparable injury of the plaintiff. . . . “(13) That as plaintiff .is informed and believes, and therefore alleges, the defendants Yuma Electric & Water Company and H. W. Blaisdell are both insolvent, and unless the plaintiff can reduce said mortgaged crop to its possession and disposes of the same, and applies the proceeds to the satisfaction of said note and mortgage, the principal sum and interest due on said note will be a total loss and plaintiff will be irreparably injured. . . . “(14) That through and by a clerical error and mistake of the draftsman who prepared said mortgage, and contrary to the intent and agreement of the parties thereto at the time the same was executed and delivered, the said mortgage was incorrectly and wrongly drafted and written by there being omitted therefrom, in the description of the mortgaged property, and immediately following the following phrase and words, to wit, ‘All the crops now grown and to be grown,’ the words, ‘during the season 1916’; when the true intent of the parties to said mortgage was that said portion thereof should read: ‘All the crop now growing and to be grown during the season of 1916 on what is known as the Yuma Heights Fruit Farm, near Yuma, Yuma county, state of Arizona; this crop consisting mainly of oranges, lemons, and grapefruit.’ And through and by the same cause the said mortgage was, contrary to the intent and agreement of the parties thereto, also incorrectly and wrongly drafted and written by inserting therein in the defeasance and mortgage clause thereof, a recital that the promissory note secured and the principal sum of which, in the sum of $1,600.00 was to be paid, had been executed by Yuma Electric & Water Company by and through H. W. Blaisdell, its president, and indorsed before delivery by said H. W. Blaisdell; and in justice and equity said mortgage should be reformed to conform to the true agreement and intent of the parties thereto. . . . “ (15) That since the institution of this suit, plaintiff sued out a writ of replevin as an ancillary and provisional remedy — 16 — herein, and caused the sheriff to take possession of said mortgaged property (which said property was then of the value of $2,000.00), whereupon the defendant, Continental Securities Company, retook possession thereof by means of a replevin bond as provided by law, with American Surety Company as its surety, as will more fully appear from the files of this case, whereby the said defendant Continental Securities Company and its said surety became obligated under the penalty of the sum of $4,000.00 to return and redeliver the possession of said mortgaged property to the plaintiff, if redelivery be adjudged; that the said Continental Securities has also already removed all of said mortgaged property out of the jurisdiction of this court, and so disposed of it as to render it impossible for plaintiff to enforce its lien thereon; and plaintiff will be compelled to, and does hereby elect to, take the assessed value of said mortgaged and replevined property, in lieu thereof, and will be compelled to take judgment against said Continental Securities Company and its surety, the American Surety Company.” The defendant Continental Securities Company interposed special demurrers for misjoinder of parties defendant and for misjoinder of causes of action, all of which demurrers were by the court overruled. Judgment was entered by default on the sixteenth day of January, 1917, in favor of the plaintiff and against the defendants, Yuma Electric & Water Company and H. W. Blaisdell, for the sum of $1,369.00, and $400 attorney’s fees; and on the twenty-seventh day of February, 1917, after trial and findings of fact, judgment was made and entered in favor of plaintiff and against defendant Continental Securities Company and its surety, American Surety Company, of Néw York, for $1,582.72, with interest at the rate of 10 per cent per annum on $1,382.72. The question to be determined in this case is: Is there a misjoinder of causes of action and a misjoinder of parties defendant in the amended complaint? The amended complaint shows upon its face at least two causes of action joined in one complaint; these causes of action are incongruous, blended and commingled, yet that fact cannot cure the defect of misjoinder of parties defendant and misjoinder of causes of action. The cause of action on promissory note and foreclosure of chattel mortgage is an action arising in contract, and the cause of action in para — 17 — graph 11 of said amended complaint against the Continental Securities Company is an action arising in tort. Replevin is also an action in tort. The Arizona Civil Code of 1913, paragraph 427, prohibits the joining of actions on contract and actions in tort. The law is positive in forbidding the misjoinder of causes of action. “A misjoinder of causes of action is a joinder of causes belonging to different classes, such as contract and tort.” 1 C. J. 1072. The rule is further laid down as to joinder of causes of action in the'following language : “In order that causes of action against several defendants may be joined, they must affect all the defendants. Distinct causes of action against the defendants cannot be joined, although in favor of the same plaintiff; nor can a cause of action upon which defendants are jointly liable be joined with one upon which one of the defendants alone is liable. ” 1 C. J. 1072. Where the Code classifies causes of action that may not be joined, such classification is binding upon the court. In Mares v. Wormington et al., 8 N. D. 329, 79 N. W. 441, is found a case in point as to the misjoinder of causes of action. This case was brought for the sole purpose of foreclosing a seed lien upon a crop of wheat. The court permitted an amended complaint to be filed, in which it was alleged, as a second and new cause of action, that the defendant unlawfully converted the grain upon which plaintiff claimed to have a seed lien, and asked for a money judgment for damages for such alleged conversion. To the second cause of action as stated in the amended complaint, one of the defendants interposed a separate demurrer upon the grounds: (1) That there is a defect of parties defendant; (2) that several causes of action have been improperly united. The trial court overruled the demurrer. The court says: “But the amended complaint was demurrable. It assumed to join in the complaint a cause of action for a tort with a purely equitable cause of action. The first count relates wholly to a seed lien and its foreclosure, while the' second alleges a tort pure and simple. These causes of action are not such as belong to the same class, and hence cannot be united in the same complaint. ’ ’ The special demurrers of .appellant Continental Securities Company should have been sustained, as the amended com — 18 — plaint shows, upon its face, a misjoinder of causes of action as well as a misjoinder of parties defendant. In view of the conclusions herein, it will not be necessary to determine the other points raised by the learned counsel in their briefs. The judgment of the lower court is reversed and this case is remanded, with directions that proceedings be had not inconsistent with this opinion. HENRY D. ROSS, J., concurs.