Fapp v. McQuillan

By the Court, NORCROSS, J.: This was an action in claim and delivery of personal property to recover possession of certain mining machinery alleged to be the property of the plaintiff, Mrs. J. W. Fapp, and wrongfully detained by respondents. Judgment was for the plaintiffs. From the judgment and from the order denying a motion for a new trial; the defendants have appealed. [1] The answer denied that the defendants, appellants herein, were copartners as alleged in the complaint or were such copartners subsequent to the 13th day of September, 1907. The answer further denied that plaintiffs, or either of them, were owners of or entitled to the [118] property in question. The answer further alleged that the property in question, at the time of filing the complaint, and for a long time prior thereto, was and now is the property of one F. E. Attux; that prior to the time of filing the suit the defendants transferred all their interests as copartners to a corporation, duly formed under the laws of the State of Nevada, and named the Wittenberg Warehouse and Transfer Company, which said corporation at the time of bringing the action was and ever since has been in the actual possession of said property. It appears from the record that respondents contended at the trial that the said Attux, having or claiming to have an interest in the property as owner thereof, and the said corporation, Wittenberg Warehouse and Transfer Company, should be made parties and be brought into the case. The court declined to make an order of this character. The evidence appears, without conflict, to show that whatever interest the defendants had in the property as warehousemen was, prior to the institution of the action, transferred to the Wittenberg Warehouse and Transfer Company, a corporation. Upon this showing judgment should have been for the defendants. (Gardner v. Brown, 22 Nev. 156, 37 Pac. 240.) [2] We think it also clear that F. E. Attux and the Wittenberg Warehouse and Transfer Company were necessary parties to the proceeding. (Robinson v. Kind, 23 Nev. 330, 338, 47 Pac. 1, 977.) A number of other questions have been argued in the briefs which are unnecessary now to determine. The judgment and order are reversed, and the cause remanded.