Moulton v. McDermott

Hayne, C. Ejectment. The answer, among other things, pleaded a non-joinder of parties plaintiff, as follows: “That there is a defect of parties plaintiff, which defect does not appear on the face of the complaint, for the non-joinder of Calvin R. Moulton, Ellen N. Verrinder, née Moulton, and Frank E. Moulton, in this, viz., that plaintiff claims, as the devisee of one E. S. Moulton, deceased, who in his lifetime pretended that he had a right of property in the parcel of land described in the complaint, and made plaintiff and other said parties codevisees thereof.”

[630]The plaintiff gave evidence tending to show that the defendant was the tenant of one Mrs. Chase; that while defendant was such tenant, Mrs. Chase conveyed to one E. S. Moulton; that Moulton died, and a decree of distribution of his estate was regularly made, “ which distributes the premises in controversy, three quarters thereof to Mary S. Moulton (the plaintiff), one twelfth thereof to Calvin E. Moulton, one twelfth thereof to Ellen N« Verrinder, and one twelfth thereof to Frank Moulton.” The defendant objected to the admission of this decree, “on the ground that it shows title in others than the plaintiff, and that it only shows she has received a portion of the title of an outside party.” This objection was overruled, and the defendant excepted to the ruling and specified the same as error. The plaintiff had a verdict and judgment, and the defendant moved for a new trial. As appears from a bill of exceptions, the court “granted said motion on the ground of non-joinder of parties plaintiff, and that the co-distributees of plaintiff should have joined with her as plaintiffs in the action, the court at the same time expressly overruling all other grounds urged by defendants on such motion.” The plaintiff appeals from the order granting a new trial.

We think that the order was erroneous. So far as is shown by the record, the co-distributees were tenants in common. And it is expressly provided by statute that “ all persons holding as tenants in common, joint tenants, or coparceners, or any number less than all, may jointly or severally commence or defend any civil action or proceeding for the enforcement or protection of the rights of such party.” (Code Civ. Proc., sec. 384; Morenhaut v. Wilson, 52 Cal. 268, 269; Himes v. Johnson, 61 Cal. 259.)

No brief has been filed for the respondent, and we do not see that there was any error at law occurring at the trial.