Hirshfeld v. Weill

GAROUTTE, J. This appeal presents questions arising upon a judgment-roll not containing a bill of exceptions. There are many defendants in the action, and they filed a joint demurrer claiming that the complaint did not state facts sufficient to constitute a cause of action, and also claiming that there was a misjoinder of parties defendant. The general demurrer being joint, if a cause of action be skated against any of the defendants it was properly overruled. (Azevado v. Orr, 100 Cal. 293.) The court there said: “So, also, a joint demurrer by all of the defendants must be overruled if the complaint is good against either of them.” It is here conceded that a cause of action is stated against some of the defendants. Again, in speaking of a misjoinder of parties defendant, the court in the above case said: “A complaint is not necessarily defective in which there is united with some defendants another against whom no liability is alleged [15]or recovery sought, and an order overruling a demurrer for misjoinder of parties defendant does not constitute a reversible error if it can be seen that the rights of the parties have not been prejudiced.” We deem it plain that no rights of the defendants have been prejudiced by the action of the trial court in overruling the demurrer to the complaint as to a misjoinder of parties.

Weill & Alexander (partners), Elliott, Davis, and Miller were jointly interested in a business venture from which was received as proceeds thereof various checks, drafts, bills, and notes. As to the disposition of these evidences of indebtedness, etc., the trial court made the following finding of fact: “That by and with the consent of the defendants John A. Miller and T. J. Davis, and for the mutual benefit of the said John A. Miller, T. J. Davis, Weill & Alexander, and E. E. Elliott, the said drafts, orders, notes, and duebills were received from said tenants by the defendants Weill & Alexander and E. E. Elliott and by them placed in the custody and possession of the defendant, the Kern Valley Bank, for collection, with the understanding that the said Kern Valley Bank should collect the same, and from the proceeds thereof pay” expenses of collection and certain other named indebtedness, and out of the surplus “pay to the defendants Weill & Alexander one-quarter share thereof, to the defendant John A. Miller one-quarter share thereof, and to the defendant T. J. Davis one-quarter share thereof.” The court further found that the bank accepted the trust, made the collections, paid the amount due as expenses of collection and the other named indebtedness, and held a surplus of three thousand seven hundred and fifty-one dollars and ninety-two cents, one-half of which it refused upon demand to pay this plaintiff, assignee of Davis and Miller.