Foster v. Fernandes

SHENK, J.

This is an appeal from a judgment in favor of the plaintiff in an action for the possession of certain dairy stock. The cause was tried before a jury, which rendered a verdict fixing the value of the stock at $2,250 and $500 damages for detention. Judgment was entered against the several defendants for possession or, if delivery could not be had, for the value and damages against the defendants Fernandes only.

In support of the appeal it is contended by the defendants that their demurrer to the second amended complaint for misjoinder of causes of action and of parties defendant should have been sustained. Each defendant was alleged to have possession of a certain number of the cattle, and it is insisted that the cause of action as to each defendant did not “affect all the parties to the action,” as required by section 427 of the Code of Civil Procedure. The allegations of control of the cattle by the defendants Fernandes were sufficient, we think, to support proof of a relationship, either of principal and agent or of coactors in unlawfully taking possession of the cattle, between the defendants Fernandes and their co-defendants. There was, therefore, no defect of misjoinder.

(More

v.

Finger,

128 Cal. 313 [60 Pac. 933];

Costello

v.

Bell,

27 Cal. App. 102 [148 Pac. 948]; 5 Cal. Jur., p. 175.)

It is next contended that the plaintiff’s cause of action is barred by the statute of limitations. The original complaint was filed February 20, 1926. The proof was sufficient to support the implied finding of the jury that the cattle came into the possession of the Fernandes not

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earlier than February 21, 1923. All of the defendants were made parties to the original complaint. As to all of them except the Fernandes it was alleged that they claimed without right some interest in the cattle. As to the Fernandes unlawful possession was alleged. An amended complaint filed some two weeks later alleged unlawful possession as to all of the defendants. The filing of the original complaint tolled the statute for the reason that the amendments were germane to the original cause of action.