St. Paul daily globe., 1896-03-17
JOIN ONLY THE LIKE
NUDGE WILLIS RENDERS A COM
PREHENSIVE DECISION ON
JOINING OF CAUSES.
CONTRACTS AND ToRTS NOT
PROPERLY TO BE TRIED IN A
JOINT ACTION UNDER AU-
THORITIES.
MAST, BUFORD a BURwELL CASE
f. the Subject of an Erudite Deliver
Rnce on Current Practice in
This Court.

Judge Willis yesterday filed his de-
cision denying the motion of the plain
tiff for leave to interpose an amended
complaint in the suit of the SturteVant-
Larrabee company against the Mast,
Buford & Burwell company ct al. This
motion involved an interesting point of
law, and was the subject of a lengthy
argument on the part Of the opposing
counsel. The present action is for the
purpose Of enforcing the double liabil-
ity of the stockholders, and the plain
tiff desired to interpoSe an amended
complaint so as to join the officers Of
the defendant company in the action,
on the ground that they were liable for
having permitted the defendant to in
cur a greater amount of Indebtedness
than its articles of Incorporation pro-
Vided for. George c. Squires and c.
q. Lawrence appeared for the plaintiff
and William H. Lightner for the de-
fendant. Following is the language of
the memorandum attached to Judge
Willis order:
This order Is based upon the conclusion
that proceedings undertaken TO enforce the
provisions Of chapter rs are essentially of such
a nature as to differentiate them from the pro-
ceedings to enforce by an action sounding in
tort the liability of directors and officers of
private corporation as fixed by section 8
OF chapter 81 of the General Statutes of the
State Of Minnesota. To allow the proposed
amendments herein would, in my opinion,
violate the salutary provisions of chapter &c
Of the General Statutes forbidding the joinder
Of causes Of action founded upon contract
with causes Of action founded upon tort or
with causes Of action arising out of the La
bility of defendant to the enforcement of
certain penalties. 1t seems to me that such
q OeClSl0n rendered necessary IL
thOrties.
Again, it seems to me that the original
complaint is demurrabe and that the pro-
POSED amended complaint would be demurra-
bic because of the absence of allegation
that the plaintiff prior to the institution of
the proceedings herein under chapter 76 of the
General Statutes, had obtained a judgment
upon its claim, and that a writ Of execution
had been issued and returned unsatisfed.
Such an allegation is condition precedent to
the maintenance or an action similar to the
cause at bar, unless the institution of an ac-
tion, the rendition of a judgment and the
issuance and return of writ of execution
as provided by statute have been without
fault of the creditor rendered absolutely i'm
possible. ---
1t seems TO me that this objection is not
removed by reason of the mere fact that the
corporation has become insolvent and has
made an assignment for the benefit of its
creditors. Our statute makes no exception in
the premises, and the only exception which
is sustained under similar circumstances by
the authorities exists where the plaintiff has
been enJolned by court of competent juris-
dictiOn from instituting an action to recover
MS claim, o. where other circumstances con-
stituted. an absolute impossibility. Mere in
convenience or inadvisability Of bringing an
action seem to me to constitute no excuse.
The fourth proposition advanced by the de-
PENDANTS is sustained for the same reasons as
those advanced for sustaining the first propo-
sluon. To allow an amendment adding
cause Of action against the directors of the
corporation based upon their alleged miscon-
duct (such misconduct being rendered penal
by virtue OF section of chapter "a of the
General Statutes) to the cause of action un-
der chapter 76 of the General Statutes orig
inally contained in the complaint, would be
TO sanction fatal misjoinder of causes of
action essentially different.
The seventh proposition advanced by the
defendants, 1.-THE proposed new cause Of ac-
ton, to wit: The liability of directors and Of
bCers cannot be enforced under chapter 76
of the General Statutes" is sustained not only
because Of the reasons initiating against a
mis1oinder of causes of action, before stat
ed, but also because the recent decision of the
supreme court of the state of Minnesota, in
re First National Bank VS.. Harper, 63, n. W.
Rep, 1872 seems to sustain fully the proposi-
tion in question.
In oVerruling the third proposition advanced
by the defendants, to the effect that it would
be inequitable and contrary to the dictates of
sound discretion to allow the defendants to
De prosecuted upon causes of action additional
10 those preferred in the original complaint I
deem it proper to state that, in my opinion
where defendant has entered a general ap-
leaTance in civil action he stands upon the
same footing with reference to the making of
proper amendments as a defendant duly
served with process. Nothing appears in the
evidence submitted to the court to show any
lack or good faith or any breach Of profess
slonal proprlety or etiquette on the part of
the learned and able counsel for the plaintiff
IL ms clients have a statutory right to join
together the causes of action which he seeks
IN their behalf to join in one complaint then
L should be unwilling that any considerations
arising from discretion should bar that right
a In u if, afc
ly exercised in overruling the fifth and sixth
propositions advanced by the defendants op-
posing this motion, because, although courts
ought not to countenance a failure to comply
~lth the salutary rule that separate causes of
actlon should be separately stated nor to look
with favor upon dilatory applications for spe-
clal relief still the controlling reasons for de-
nylng the relief here sought are so important
ana the exercise Of good faith on the part of
the counsel for the plaintiff is so apparent
that minor delinquencies may it seems TO
me be fairly and reasonably overlooked. The
rules OF practice should be strictly enforced
except IN cases where to lay stress upon them
would be TO affect disastrously material claims
OF right. which are disputed upon grounds
Whlch involve the merits of the controversy.
After very careful consideration II seems
10 me mat the motion should be denied and
that all parties hereto should by the state
ments IN this memorandum. be set right as
TO attitudes and motives.
The argument upon this motion has b.e,,
prosecuted on all sides with a zeal, ability and
display of learning which reflects great credit
upon the bar, and affords sincere qualification
TO the court.
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