Knatz v. Wise

De Witt, J. The defendant, in his brief, contends that the facts in this case distinguish it from the cases of Flanders v. Murphy, 10 Mont. 398, 25 Pac. 1052, and Marshall v. Bank, 11 Mont. 351, 28 Pac. 312. But there is no evidence in the record, and we have no means of distinguishing the facts herein from those in the cases cited. The findings clearly bring this case within the two cases cited, and the judgment on the general proposition must be affirmed, on the authority of those decisions. The only other question left is as follows: Appellant contends that the plaintiff sued the defendants as a copartnership, and that the court was not justified by the pleadings in entering judgment against Edward I. Goodkind alone, and dismissing as to the others. It is to be observed at the outset that while it is alleged that the defendants are partners, and that the assignment was made to the partnership, yet this action is not one upon a partnership debt or account; that is to say, this action has not to do with partnership affairs. It is true that it is alleged that the assignment was made to the partners, but the facts showed, as found by the court, that Goodkind alone was the assignee. Under our statute, we are of the opinion that, as the facts were found, judgment was properly entered against Goodkind, for the account of Knatz, out of the proceeds of the assignment. Sections 239 and 240 of the Code of Civil Procedure are as follows: “Sec.'239. Judgment maybe given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves. “Sec. 240. In an action against several defendants the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment is proper.” There was no demurrer to the complaint on account of misjoinder of parties. This question was passed upon in the case of Conklin v. Fox, 3 Mont. 208, in which the court says: [558] “Under the Code of Civil Procedure of this territory, ‘judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants. ’ Section 231: ‘In an action against several defendants the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment is proper.’ (Code Civ. Proc. § 232.) W e are satisfied that we may treat as immaterial the allegations of the complaint concerning the copartnership, and that a cause of action is stated against the defendants. 'The proof showed that too many persons had been joined as defendants, but this fact does not appear upon the face of the complaint, and the answer of the appellant did not plead it. The appellant thereby waived his objection to the misjoinder of the parties defendant. ‘If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same.’ (Code Civ. Proc. § 86; Parchen v. Peck, 2 Mont. 567.) The action of the court in entering the judgment is sustained by the following authorities: Pom. Rem. §§ 289, 290; Rowe v. Chandler, 1 Cal. 168; Rutenberg v. Main, 47 Cal. 213; Claflin v. Butterly, 5 Duer 327. In McIntosh v. Ensign, 28 N. Y. 169, Mr. Justice Wright says: ‘A plaintiff is not now to be nonsuited because he has brought too many parties into court. If he could recover against any of the defendants upon the facts proved, had he sued them alone, the recovery against them is proper, although he may have joined others with them in the action against whom no liability is shown. ’ The sections of the Code of Civil Procedure, supra, embody the principle which is maintained by these authorities. The allegations of the pleadings have been liberally construed, and substantial justice has been done between the parties. (Code Civ. Proc. § 98.)” See, also, Mining Co. v. Rumley, 1 Mont. 201; Wells v. Clarkson, 5 Mont. 336; Rowe v. Chandler, 1 Cal. 168; See, also, Lewis v. Clarkin, 18 Cal. 389, where it is held that the common-law rule that, in a suit against several joint debtors, plaintiff must recover against all or none, is changed by the [559] statute which we have above quoted. See, also, Tay v. Hawley, 39 Cal. 93. It is also contended that the judgment is erroneous in that the court allowed interest upon the account. Our statute provides that interest may be allowed ‘ £on money lent or money due on the settlement of accounts, from the day of such settlement of accounts, between the parties, and ascertaining the balance due. ” It appears from the complaint that on the 27th day of April, when the plaintiff, as a wage worker, demanded his money from the assignee, the defendant accepted the notice, and acknowledged the correctness of plaintiff’s claim. We think this, under the statute above quoted, was a settlement of the account and the ascertaining of the balance due, and think, therefore, interest was properly allowed. The judgment of the district court is affirmed. Affirmed. Pemberton, C. J., and Hunt, J., concur.