Bourland v. Madill State Bank , 32 Okla. 761 ( 1912 )

The first assignment of error, we think, is meritorious. While the petition is not sufficiently specific, definite, and certain in its statement of a cause of action against W. S. Derrick, J. D. Arbuckle, and John L. Derrick, as trustees of the Madill National Bank, nor is it sufficiently definite and certain as to whether plaintiff seeks to proceed against said parties individually or in the capacity of trustees, nor is it specific as to whether the note in question was rendered uncollectible by reason of the alleged negligence, but for the purposes of this question it does not matter upon which theory plaintiff proceeded. There was not a defect of parties defendant as contemplated by statute (section 5629, Comp. Laws 1909) because the mere misjoinder of parties defendant is not a ground of demurrer.Stiles v. City of Guthrie, 3 Okla. 26, 41 P. 383; WinfieldTown Co. v. Maris, 11 Kan. 128; McKee v. Eaton, 26 Kan. 226.

If plaintiff sought to proceed against said parties individually, or sought to join them as individuals, in such case if there was a misjoinder, it was a mere excess of parties and not a defect of parties defendant as contemplated by statute, and it was error to sustain the demurrer on that ground. However, if plaintiff sought to proceed on this theory, such error would be harmless. But, if on the theory of holding said parties jointly liable as trustees of the national bank with the Madill State Bank, then there was no improper joinder, and plaintiff was deprived of a substantial right by the sustaining of the demurrer. While the petition, as stated above, is not sufficiently specific as to which theory plaintiff proceeds upon, yet we think the allegations contained in the petition are sufficient to warrant the conclusion that plaintiff sought to proceed on the latter theory.

One paragraph of the petition is as follows:

"And further alleges that the defendants W. S. Derrick, J. D. Arbuckle and John L. Derrick were the managing officers of the Madill National Bank and as such are liable as trustees under the law to the creditors of the said Madill National Bank, now in liquidation."

The petition also alleges:

"That the Madill State Bank is the successor to the Madill National Bank and liable for its debts, having received the assets of the same, and that it has the same officers, the same place of business, and in fact is a continuation of the old corporation in another name."

If these allegations be true, we think there was no improper joinder of parties defendant, and that the material defect in the petition consisted in its not being sufficiently definite and certain.

As to the second assignment, we think the court erred in sustaining the motion compelling plaintiff to elect on which count he would proceed. Plaintiff's cause of action here, if he had a cause of action, consisted in defendant's failure to collect on plaintiff's note. Plaintiff alleged, not two distinct causes of action, but two distinct acts of negligence by which plaintiff was deprived of the value of his note. Plaintiff did not ask for double relief. He merely asked for the face value of his note. This was not an improper joinder of causes of action. If defendant was liable for any amount because of any negligence, it was the face value of the note, provided the note was rendered worthless by reason of defendant's negligence, and it was error to deprive plaintiff of part of his cause of action and force him to proceed upon only a part. It is the policy of the law to assist the injured party in the redress of his wrongs rather than to shield the transgressor in his wrongdoing, considering always that the burden is on the complainant to prove his injuries.

It is contended, however, by defendants in error that plaintiff's petition stated no cause of action against the Madill State Bank, for that the Madill National Bank at the time of the institution of this action was in course of liquidation, and the cause of action, if there was any cause of action, was against the Madill National Bank, and not against the Madill State Bank. That the Madill State Bank was not successor to the national bank or a continuation of the same institution under a different name, but was a mere purchaser of the assets of said national bank without assuming any liabilities of said bank. As to whether this contention is correct, it is impossible to determine from the record. The testimony taken at the trial fails to show whether the Madill National Bank was converted into the Madill State Bank, or whether it only entered into voluntary liquidation, and that the Madill State Bank was a mere purchaser of the assets of such national bank. There is a stipulation between the parties as to the facts, but such stipulation fails to disclose facts which would enable us to determine whether the one or the other proposition is true. The case was tried on the theory of a conversion of the national bank into a state bank, and the court instructed the jury on this theory, which instruction was not excepted to by either party to the action, and, while we concede that this question might materially affect a determination of this cause, yet, as we are unable to say from the record which theory is correct, we shall refrain from deciding this point.

We believe, however, for the reasons herein given, that the plaintiff was deprived of substantial rights in the trial, and that the judgment should be reversed, and the cause remanded.

By the Court: It is so ordered.