Stewart v. Templeton , 55 Or. 364 ( 1909 )

Mr. Justice King

delivered the opinion of the court.

1. In support of the points insisted upon by the demurrer, our attention is called to the conceding facts in each of the cases to the effect that it appears that the mortgages involved were given to two mortgagees, and to secure separate indebtedness represented by separate and individual promissory notes, by reason of which it is argued that the plaintiffs cannot be joined in the foreclosure proceedings. The defense thus intended to be presented, as we gather it from the record and from the argument, is that_there is not a defect, but a misjoinder, of parties plaintiff. The first ground assigned in the demurrer is not insisted upon, and, furthermore, is untenable. State ex rel. v. Metschan, 32 Or. 372 (46 Pac. 791: 53 Pac. 1071: 41 L. R. A. 692). While no provision is made in the statute for'-demurring on the grounds of misjoinder of parties plaintiff under that particular designation, the demurrer is sufficient to present what is equivalent to that defense for the consideration of the trial and appellate courts. Pomeroys’ Code Rem. (3 ed.), §212; Smith v. Day, 39 Or. 531, 539 (64 Pac. 812: 65 Pac. 1055).

2. The sole question therefore is whether, under the conceded facts as disclosed by the complaints, the plaintiffs may be joined in either of the proceedings under consideration. This question, we think, may be determined by reference to the sections of our statutes bearing upon the subject, the provisions of which are sufficiently clear as not to be open to construction. Section 393, B. & C. Comp., provides that every suit shall be prosecuted in the name of the real party in interest, subject to such exceptions as are there enumerated, which clearly do not include the proceedings here under consideration. Section 394, B. & C. Comp., provides that all persons having an interest in the subject of the suit, and in obtaining the relief demanded, may be joined as plaintiffs, and that any person may be made a defendant who has, or claims, an interest in the controversy adversely to plaintiff, or who may be necessary to a complete determination or settlement of the questions involved; and section 395 further provides that those who are united in interest must be joined as plaintiffs or defendants, but that, if the consent of any one who should have been joined as plaintiff cannot be obtained, he must be made a defendant, the reasons for which may be stated in the complaint. It thus -appears from the sections alluded to that, where it is practicable to do so, all who may be interested in the matter in controversy should be made plaintiffs, and that only where the consent to become co-plainiffs cannot be obtained must the party who should be co-plaintiff be made defendant. In this instance it will be presumed, from the fact that the two parties, plaintiffs, who hold the notes, appear as plaintiffs without objection, that they have consented to be thus joined, which course was manifestly contemplated by the sections of the statute mentioned.

3. It is argued, however, that the ownership in the notes is separate and distinct from that in the mortgage, and that the notes may be assigned independent of the mortgage. Whether such notes may be assigned independent of the mortgage is not material to this controversy, for section 423 of the statutes provides, in substance, that any lien upon real or personal property, except that of a judgment or decree, whether created by mortgage or otherwise, shall be foreclosed by a suit, and the property adjudged to be sold to satisfy the debt secured thereby, and if in such suit it shall appear that a promissory note or other obligation for the debt has been given by the mortgagor, or other lien debtor, as principal or otherwise, the court shall also decree a recovery of the amount of such debt against such person or persons as in an ordinary proceeding for the recovery of money. It is insisted, however, that, whatever view may be taken,; a deficiency judgment cannot be had against the defendant; but, since it is not disclosed that the notes were given for the purchase price of the property mortgaged, we fail to see upon what grounds this contention can be upheld.

Decided February 1, 1910. [106 Pac. 640.]

Some of the authorities cited from other jurisdictions tend to support the theory advanced by defendant’s counsel on the points presented; but the conclusions there announced appear to be based upon statutes different from ours. Our statute is clear and explicit upon the subject, and we believe decisive of the controversy.

The judgment of the trial court is affirmed.

Affirmed.