Katz v. American Finance Co. ( 1924 )

The.facts in this case are set forth in the case of U. S. Lloyds v. Katz, 2 Abs. 391. That case having been brought to recover on a theft insurance policy and to recover for loss of an automobile, it being claimed that the car was stolen.

In the instant case, the American Finance Co. brought action on the note and mortgage which had been executed by one Bender to the Columbus-Haynes Co., and by it transferred to the Finance Co.. The action was brought against Bender to foreclose the mortgage and recover on the note, and Katz was made a party defendant. He claimed that as he was in no way obligated on the note, he wjas not a proper party defendant to the suit, as he could not be joined in the action since there was no privity between him and the Finance Co. To sustain that view, counsel for Katz filed a demurrer on the ground of misjoinder. Katz contended that the proper procedure for the Finanre Co. was replevin, sinde the action sought to recover from him the possession of the automobile, and in such action Katz would be entitled to trial by jury. Both the Common Pleas and the Appelate Courts found for the Finance Co., and Katz was forced to trial without a jury in the foreclosure suit. The Court of Appeals found in favor of the Finance Co., for recovery and sale of the automobile as against Katz. The Supreme Court is asked to overrule the finding.