Strawn v. First National Bank of Humboldt

Jackson, C. It appears from tbe petition that each plaintiff bad a time check drawn on tbe defendant bank by one Samuelson, and that each check represented an independent and distinct transaction in nowise connected with tbe issuing of tbe other checks. It is alleged that tbe checks are in fact certificates of deposit upon which the bank is liable. Each of the plaintiffs assigned a fractional part of his claim to his coplaintiffs, but it is conceded that the interest now claimed by each in the sum of the checks equals the amount of the check held by him in the first instance. They joined as plaintiffs in an action against the bank to recover on these checks. The defendant interposed a demurrer to the petition on two grounds: First, that the petition does not state facts sufficient to constitute a cause of action; and second, that several causes of action are improperly joined. The demurrer was sustained in the district court and the action dismissed. The plaintiffs appeal. Each plaintiff claims an interest in all of the checks or certificates of deposit, whatever, they may be termed, and it is urged that, while their rights arising under the partial assignments would not be enforced in an action at law without the consent of the bank, a court of equity will take cognizance of these assignments and compel an accounting. In the absence of the assignments set out in the petition the plaintiffs could not have joined either at law or in equity in a single action against the bank, and it is evident from the face of the petition that the partial assignments were made for the express purpose of enabling [416] them to join in a single action, each for his own benefit and 'on behalf of the others, but equity will not sustain assignments for that purpose. Hoagland v. Van Etten, 22 Neb. 681. We are convinced from a reading of the petition that the assignment of fractional parts of the claims of the plaintiffs against the bank has not changed the relation of the parties and has resulted in a misjoin-der of causes of action. The judgment of the district court dismissing the bill was right, and we recommend that it be affirmed. Duffie and Albert, CC., concur. By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is Affirmed.