Van Auken v. Dammeier , 27 Or. 150 ( 1895 )

Opinion by

Mr. Chief Justice Bean.

1. The plaintiffs move to dismiss the appeal for the reason that .on August seventh, eighteen hundred and ninety-four, defendants served a notice of appeal, and on the fourteenth day of the same month filed an undertaking with one Coulter as surety. Within the time allowed by law the plaintiffs excepted to the sufficiency of the surety, and the defendants, instead of producing him for justification, abandoned the attempted appeal, and served a new notice and gave a new undertaking before the time for an appeal had expired. These facts bring the case squarely within Holladay v. Elliott, 7 Or. 483, in which it was held that an appellant may abandon an attempted appeal when he deems his notice imperfect, or when it is inconvenient or impossible for the surety to justify, in case of an exception to his sufficiency, and may give a new notice and undertaking at any time within the period limited by law for taking appeals. An appeal is not perfected until the time in which to except to the sufficiency of the surety has expired, or from the justification thereof, if excepted to, and until perfected it may be abandoned and a new appeal taken. It follows that the motion to dismiss the appeal must be overruled.

2. On the merit's, the contention for the defendants is that from the facts set out in the complaint it appears that plaintiffs have a plain, speedy, and adequate remedy in an ordinary action at law, and consequently a court of equity has no jurisdiction of this controversy; while plaintiffs seek to sustain the jurisdiction on the familiar doctrine that a court of equity will exercise jurisdiction to prevent a multiplicity of suits. We do not think the doctrine applicable to this case. The rights of the plaintiffs, as against the defendants, are purely legal, and wholly separate and distinct. There is no community of interest among them, either in the subject matter of the suit, or in the relief sought. Each plaintiff is demanding a separate judgment against the defendants for the amount of his individual claim, the granting or refusal of which does not depend upon the rights of his coplaintiffs, any further than it grows out of the same transaction, and perhaps involves the same questions of law and similar facts. A court of law is fully able to grant adequate and speedy relief, and it seems to us the controversy should be determined in that forum. It is sometimes admissible, — where a number of persons have separate and individual claims or rights of action against the same person, arising out of the same event or transaction, and which involve and depend upon the same questions of law and similar matters of fact, — for a court of equity to exercise jurisdiction in order to prevent a- multiplicity of suits, and thus give in one proceeding more substantial relief than could be obtained in numerous actions at law prosecuted by each individual separatelyi But such jurisdiction is exercised only where the legal remedies are inadequate, and cannot meet the ends of justice as effectively as' those afforded by a court of equity, and a bill for that purpose, as said by Morton, C. J., “will not be entertained unless it appears that there is a practical necessity for the interposition of the court to prevent vexatious litigation”: Fellows v. Spaulding, 141 Mass. 93 (6 N. E. 548). Where the rights of the several plaintiffs are purely legal, and in themselves perfectly distinct, so that each party’s case depends upon its own peculiar circumstances, and the relief demanded is a separate money judgment in favor of each plaintiff and against the defendant, there is no “practical necessity” for the interposition of a court of equity, and we can find no authority for holding that it will assume jurisdiction simply because the parties are numerous. A defendant is entitled to the constitutional right of trial by jury, of which he cannot be deprived because numerous parties are asserting claims against him, even though such claims may be founded upon the same questions of law and fact. The circumstances under which a court of equity will exercise jurisdiction in order to prevent a multiplicity of suits are fully discussed and considered by Mr. Pomeroy in his work on Equity Jurisprudence; but no principle is announced by him, or sustained by any of the authorities referred to, upon which, in our opinion, this proceeding can be sustained: 1 Pomeroy’s Equity Jurisprudence, § 243, et seq. It follows that the decree of the court below must be reversed, the complaint dismissed, and the parties remanded to their remedy at law. Reversed.