Kunz v. Ragsdale , 1917 Tex. App. LEXIS 1208 ( 1917 )

MOURSUND, J.

Appellants, Victoria Kunz, joined by her husband, Frank Kunz, Agnes Malik, Genovefa 1-Iahn, joined by her husband, Raymond Hahn, Frantiska Malik, and Joseph Malik, the last-named two, minors, being represented by Agnes Malik, as next friend, sued J. W. Ragsdale, D'. A. Paul-us, Mary Malik, and the American Surety Company of New York to recover $1,030.47, 'alleged to be the proportionate part belonging to plaintiffs of certain sums loaned by A. Malik, the first guardian of plaintiffs which loans were not collected but renewed by Mary Malik, their second guardian, who was appointed after the death of A. Malik. It was alleged that defendants Ragsdale and Paulus are sureties on the guardian’s bond of A. Malik, and the American Surety Company is the surety on the guardian’s bond of Mary Malik. The two bonds are copied in the petition. It was further alleged that the loans were made to A. P. Toman, without any authority from the probate, court, and without exacting the security required by law, and the money negligently left with him until he became insolvent, and that the money was thereby lost to appellants. It was also alleged that the exact date when Toman became actually and notoriously insolvent was not known to plaintiffs; that A. Malik acted negligently in making the loans, and that Mary Malik, knowing that the funds were illegally in the hands of Toman, and that he was financially distressed, and that the funds were likely to be lost if left in his hands, continued to leave same in his hands and made no effort to recover the same, and in fact renewed the loans.

Defendants Ragsdale and Paulus filed pleas of privilege to be sued in the counties of their respective residences, and pleaded misjoinder of parties and causes of action. The court, without making any order with respect to the pleas of misjoinder, sustained the pleas of privilege, and transferred the entire case to the district court of De Witt county, the county in which defendant Paulus resides.

[1, 2] It is evident that, as Mary Malik resides in Karnes county, the suit was properly brought in that county against all parties, unless there is a misjoinder of parties and causes of action. If there is a misjoinder, the transfer of the entire case was erroneous because when it is called for trial the court will necessarily sustain the plea of misjoinder, and require an election by plaintiffs of which cause they will prosecute. If plaintiffs should elect to prosecute the suit against Mary Malik, she would promptly file a plea of privilege to be sued in the county of her residence. The question of misjoinder should have been determined first in order to protect the rights of all the parties, for if sustained the plaintiffs would have the privilege of going on with their suit against Mary Malik.

[3] However, we are of the opinion that the exceptions urging misjoinder are not well taken. The pleadings are not as complete as they should be, but plaintiffs show that they are entitled to a certain estate which has been administered 'by two persons, and that one or both of them are liable to plaintiffs; that there will be a controversy between defendants, each contending that it was the fault of the other which- caused the loss to plaintiffs. We do not believe that under our system plaintiffs are required to bring separate suits. In the case of Love v. Keowne, 58 Tex. 191, Judge Stayton laid great stress upon the proposition that the joinder in that case should be permitted for the full protection of the plaintiff. In this case it seems very clear that the full protection of the plaintiffs can only be obtained by joining all of those upon whom the responsibility rested for the administration of plaintiffs’ estate. In Love v. Keowne, supra, the court said:

“It has been found impracticable to lay down any positive general rule as to what will or will not constitute multifariousness, but the courts have wisely left the question, as one of convenience, to be decided according to the peculiar circumstances of the case. As said by McLean, J., in Gains v. Chew, 2 How. (U. S.) 619 [11 L. Ed. 402], ‘Every case must be governed by its own circumstances; and as they are as diversified as the names of the parties, the court must exercise a sound discretion on the subject.’ It is said in the notes to the leading case of Fellows v. Fellows, 4 Cowen [N. Y.] 682, in 15 Am. Decisions, 428, that perhaps the best general rule that can be laid down is that stated by Wilde J., in Dimmock v. Bixby, 20 Pick. [Mass.] 377, that the objection of multifariousness does not hold ‘where one general right is claimed by the plaintiffs, although the defendants may have separate and distinct rights.’ ”

In support of our conclusion in this case we cite the following cases in addition to the case quoted from as illustrative of the liberality of our system with respect to avoiding a multiplicity of suits: Skipworth v. Hurt, 94 Tex. 322, 60 S. W. 423; Railroad Co. v. Graves, 50 Tex. 202; Sun Ins. Office v. Beneke, 53 S. W. 98; Muncy v. Mattfield, 40 S. W. 345; Moore v. Bldg. Ass’n, 19 Tex. Civ. App. 68, 45 S. W. 974; Finegan v. Read, 8 Tex. Civ. App. 33, 27 S. W. 261.

The judgment is reversed, and the cause remanded.

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