Morton v. Ft. Lyon Canal Co.

CARLAND, Circuit Judge.

This case is ruled by our opinion in No. 4644 (238 Fed. 495, - C. C. A. -), this day filed, except that the demurrer in this case stated as one of the grounds of demurrer that there was a misjoinder of parties plaintiff. The complaint alleges that title to the land taken vested in the plaintiffs May 12, 1899, and continued in them until June 17, 1911, when Frances Kent' Wells conveyed all her right, title, interest, and right of possession to the .property to the plaintiff Nellie W. Morton.

The complaint also alleged that the property was taken during the years 1910 and 1911, or thereabouts. It does not, therefore, clearly appear whether the land was taken while the title was in both of the plaintiffs; but it might have been. For this reason we do not think there was a misjoinder of parties plaintiff. If it shall happen at the trial that the land was taken when one of the plaintiffs had no interest therein, of course that plaintiff could not recover; but we do not think the complaint was bad for misjoinder of parties.

The judgment is reversed, and the case remanded, with instructions to overrule the demurrer, with leave to the defendant to answer if it shall be so advised.

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