Caswell v. Engelmann , 31 Wis. 93 ( 1872 )

Cole, J.

This is an action upon a promissory note bearing date September 27th, 1860, and payable three months from date, which nóte was executed and delivered to the plaintiff by J. L. McVickar & Co., a firm consisting of the defendant and one J. L. McVickar. Among other things, it is alleged in the complaint, that, at the time of the execution of the note, the plaintiff was and ever since has been a resident and citizen of the state; that the defendant was also a citizen of the state when the note was executed and delivered; but that shortly thereafter, and before the maturity of the note, he removed to the state of Michigan, where he resided continually until 1868, when he returned to this state, where he now resides; and, further, that the right of action upon the note against McVickar, who has continually been an inhabitant of the state, is barred by the statute of limitations.

There are two objections taken to the complaint on demurrer. First, it is said that it appears upon the face of the complaint that the co-contractor, McVickar, is a necessary and proper party to this action; and, second, that the facts stated do not constitute a cause of action.

The first objection raises a question of practice of some interest, and new, so far as we know, in this state. And it is, whether the plaintiff had the right to anticipate the defense of the statute of limitations on the part of McVickar, and excuse his nonjoinder1 in the action upon that ground ? On the part of the defendant it is insisted that he could not, but that both the makers of the note should have been made parties to the action. There are two provisions of the statute which have a material bearing upon the question of practice under consideration. By sec. 39, ohap. 138, B. S., it is provided that, in an action against two or more joint contractors, if it appears on the trial, or otherwise, that the plaintiff is barred as to one or more but is entitled to recover against any other, in that event judgment shall be given for the plaintiff as to the defendant against whom he is entitled to recover. It is very apparent that, under this section, the plaintiff is entitled to take judgment against any one of several joint debtors who may have revived the debt by a new acknowledgment or promise, or otherwise have kept the cause of action alive, even though the statute may have run upon the claim in favor of the other joint debtors. For instance, if in this case the plaintiff had joined McVickar in the action, he would have been subjected to costs upon McVickar’s pleading the statute of limitations, although he was entitled to recover against the defendant. This is the plain and manifest intention and reading of this section.

By the next section it is enacted that if, in any action on contract, the defendant shall answer that any other person ought to have been jointly sued, and shall verify such answer by his oath or affirmation, and issue shall be joined thereon, and if it shall appear on the trial that the action is barred against the person so named in such answer, by reason of the provisions of the statute, the issue shall be found for the plaintiff. Now it is obvious that, whenever a defendant answered, under oath, that some other person ought to have been united in the action, if issue were taken thereon and it appeared that the action was barred in respect to the person so named, then the judgment was for the plaintiff. That is, if in this case the plaintiff had omitted in his complaint all reference to McVickar, and the defendant had filed a verified answer, setting up that McVickar ought to have been jointly sued with him, then, upon the plaintiff establishing the facts stated in the complaint, he would have been entitled to a judgment against him.. And, upon the pleadings, it seems to us the case is substantially in the same attitude it would have been had it taken this course. It appears from the complaint that the statute has run in favor of McVickar, and that no recovery can be had against him. The defendant bas admitted tbis by tbe demurrer. It therefore appears tbat tbe plaintiff is barred as to McYiekar. Wby, then, should be be made a party, if all tbe court can do in respect to him, is to give him costs ? It is true tbe defendant bas not put in a technical answer, under oath, alleging tbat McYiekar ought to be joined in tbe action, but by bis demurrer be practically raises tbat issue of law upon the facts stated in tbe complaint. And, in view of tbe language used in tbe two sections above cited, we do not see bow it can properly be said tbat there is a nonjoinder of parties defendant, and tbat it appears upon tbe face of tbe complaint that McYiekar is a necessary and proper party. We have found no decision in England under tbe last proviso of the first section of Lord Tenterden’s act (9 Geo. IV, chap 14), and tbe second section of tbe same act, which are substantially tbe same as sections 89 and 40 of our statute ; nor in any state which has a similar provision. And, in tbe absence of all authority upon the question, we do not feel warranted in saying tbat it appears upon tbe face of tbe complaint that McYiekar is a proper and necessary party. The allegation intended to justify tbe omission to make him a party, shows, beyond all doubt, tbat an action upon tbe note is barred as to him, and tbat no recovery could possibly be bad against him.

Tbe other objection to tbe complaint involves a construction of section 28 of tbis same chapter. And that is, whether the absence of one joint debtor from tbe state suspends tbe running of the statute of limitations against him, bis codebtor remaining within the state. It is insisted tbat the statute refers to a cause of action existing against one person alone, and not where it exists against several persons jointly. This was the construction placed upon a similar provision in the New York statute, in tbe case of Brown v. Delafield, 1 Denio, 445; but that case was overruled in Denny v. Smith, 18 N. Y., 567. We have no doubt tbat the case in the 18 N. Y. is the correct and •proper exposition of tbis provision.

We therefore think tbe order overruling tbe demurrer is correct, and must be affirmed.

By the Court.— Order affirmed.