Majority — Heydeneeldt J.
p. 89GEORGIANA LINDSAY, Respondent, v. EDWARD P. FLINT, JAMES P. FLINT, JOHN BERTRAM and D. HALE HASKELL, Appellants.
Headnote
Bond — Parties in Action. — In an action upon a bond or written undertaking, there can be no constructive parties jointly liable with the proper obligors.Appeal from the Superior Court of San Francisco.
The plaintiff filed her complaint, stating that the defendants procured the issuing of an injunction against her; that the defendants Edward P. Flint and D. Hale Haskell, executed the undertaking to procure the injunction, and that the injunction was dissolved.
She claimed judgment against all the defendants for the damage sustained by reason of the injunction.
The defendant Edward P. Flint demurred to the complaint, for the following reasons:
1st, The defendants should not have been sued jointly.
2d. That several causes of action were improperly united.
3d. That the complaint does not set forth facts sufficient to form a cause of action.
The Court overruled the demurrer, and the defendant appealed.
John K. Hachelt, for Appellant.
[89] Cited 6 How. P. 131; * 19 Wend. 546 ; 2 Wend. 369 ; 2 Saunders, 1176, note 8; 2 Chit. Pleading, 229, 200, 199.
Brookes, for Respondent.
delivered the opinion of the Court.
Mr. Ch. J. Murray concurred.
We cannot sanction the position taken by respondent’s counsel, to the effect that because the plaintiffs in the former suit filed the injunction bond, that they were therefore parties to it, without signing it. I know of no case in which in an action upon a bond or written undertaking, there can be constructive parties jointly liable with the proper obligors. •
The demurrer should have been sustained.
Judgment reversed, and cause remanded.
Cases cited
- Pell v. Lovett 19 Wend. 546 p. 89
- Butler v. Wright 2 Wend. 369 p. 89