Bruffarts v. Ober

Grac®, C. J. This appeal is from a judgment of dismissal of plaintiffs’ action, and for costs in the sum of $69.60. Plaintiffs claim that they were the owners in possession of about 19 tons of hay, of the value of $20 per ton, which was situated on a certain section of land, described in the complaint; that, during the month of October, 1919, defendants’ live stock, cattle, horses, and other animals trespassed on the land and destroyed the hay; that plaintiffs were damaged in the sum of $380. It is, in substance, alleged that the animals of each of the defendants contributed to and was the approximate cause of the damage. A further claim is made of $100, on account of reasonable cost and value of attorneys’ fees incurred or expended by them. Each of the defendants interposed a separate answer, consisting of a general denial, except Miller, who answers both by a general and a special denial. The testimony shows that Bruffarts owned a quantity of hay on one parcel of land, Wold a quantity on another, and both owned a quantity on a third parcel, all within the same section. The hay was in bunches. There is evidence that the animals of some of the defendants did •consume part of the hay and otherwise damaged some of it. It is not necessary here to analyze the evidence nor to show whose stock did the damage. [1000] At the close of plaintiff’s case, defendants made a motion for a di rected verdict, on the theory that the plaintiffs, having maintained a joint action, they could not recover, for the reason that the stock of all of the defendants was not seen upon the land at the same time but upon different dates and occasions, and for the further reason that the animals of the defendants were not acting together in committing the trespass under the joint control of all or separate control of any of the defendants. This motion was renewed after the introduction of defendants’ evidence, but the record does not show that it was renewed after both sides had rested. The court, not on the motion made by defendants, but evidently upon his own motion, directed a verdict on the sole theory that there was a misjoinder of parties, plaintiff and defendants, as well as a misjoinder of causes of action. These were no grounds for directing a verdict. In case of misjoinder of parties, we are of the opinion that the proper remedy to eliminate the parties improperly joined is by motion of dismissal; the motion would ordinarily be made before issue is joined. A misjoinder or excess of parties is not reached by demurrer. Excess of parties is not to be understood as a defect of parties. Where the pleadings show deficiency of parties, demurrer is proper. Olson v. Shirley, 12 N. D. 106, 96 N. W. 297. Demurrer may be interposed where causes of action have been improperly united. Section 7442, C. L. 1913, subd. 5. We are of the opinion that, in the circumstances of this case, a joint action would not properly lie, and that a separate action should have been brought against each of the defendants, if liability, were claimed of each. Cooley on Torts (3d ed.) 704, 1 R. C. E. 1106, 2 Cyc. 410, 3 C. J. 145. It would seem that the trial court gave the right result, but for a wrong reason. If the defendants had made a motion at the close of all the evidence for a dismissal of the action against them, it would have been proper for the court to have granted the motion, as the evidence was insufficient to support a joint verdict. The fact that it did dismiss the action for another reason, we think, in the circumstances of this case, in reality should not be permitted to change the result at which the court arrived. The action was dismissed without prejudice, so that the plaintiffs are not prevented from bringing a proper action. [1001] Respondents are entitled to their costs and disbursements on appeal. Christianson, Birdzell, and Robinson, JJ., concur. Bronson, J., concurs in result.