Garr v. Wood , 135 Ga. 90 ( 1910 )

Fish, C. J.

(After-stating the facts.) In our opinion, there was clearly a misjoinder of parties plaintiff, and for this .reason the demurrer was properly sustained. There was also a misjoinder of causes of action, although both arose- ex contractu; as each was distinct from the other and in favor of a different party. The husband’s alleged cause of action was the indebtedness of the defendant to him, arising out of their relations and dealings as principal and factor, which, it was alleged, would be shown by a fair and just accounting between them. The husband, therefore, needed to have an accounting between his factor and himself. The wife’s alleged cause of action was the breach of the bond for title which the defendant had executed and delivered to her, and, from the allegations of the petition, it was not necessary, in order to show this breach, for her to have an accounting between the defendant and her husband. The wife was not legally interested in the debt alleged to be due by the defendant to her husband, and the husband was not legally interested in the alleged breach of the bond for title given to his wife by the defendant. The whole of the debt which the deed from the husband to the defendant had been given to secure had been paid, and therefore the condition upon which the defendant was to convey the title to the wife had occurred; but the combination note and mortgage which had been the written evidence of the existence of this debt had, by an entry thereon, signed by the defendant, become the written evidence of its payment, and this evidence was in possession of the petitioners. There was no matter in this suit in which the petitioners had a common interest. "While the wife might have needed the husband as a witness in her case, she did not need him as a party thereto; and there was no reason why the husband should join the wife as a party plaintiff in his suit against the defendant. “Courts will not in one suit take cognizance of distinct and separate claims of different persons; but where the damages as well as the interest is several, each party injured must' in that case' sue separately.” Civil Code, § 4946; Georgia Railroad Co. v. Tice, 124 Ga. 459 (52 S. E. 916).

Of course the ruling here made does not, adjudicate the question as to whether the plaintiffs separately have a cause of action.

Judgment affirmed.

Beck, J., absent. The other Justices concur.