WHITNEY v. STARK et al., 8 Cal. 514
Opinion
Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. This was an action of trover. The property was levied upon and sold by the defendant Stark, as sheriff, against E. H. Cage. The plaintiff had judgment in the Court below, and the defend- L ants appealed. The first error assigned by the learned counsel of defendants is, that the Court erred in refusing the motion of defendants for a nonsuit. It appeared clearly from the evidence of the plaintiff, that he was only a part-owner of the property,—one Hazelrig having an equal interest with him.
All the parties in interest as plaintiffs, should be joined. Practice Act, §§ 12; 14; 1 Chitty's Plea., 65. But there are only two ways of taking advantage of the non-joinder, when the defect does not appear upon _ the face of the complaint; and that is either by answer or apportionment of the damages at the trial. Practice Act, §§ 40, 45; 1 Chit. Plea., 66; 9 Mass. R., 74; 1 Wend., 380., In equity, the objection should be taken by answer or demurrer. 2 Paige, 280.
Where a part-owner brings an action in form, ex delicto, and the objection is not made by plea in abatement, the other part-owner may afterwards sue alone. x 1 Ch. Plea., 66. In this case, the objection was not made by answer.
The nonsuit was, therefore, properly refused. , The next point made by the appellants is, that the Court should have granted them a new trial, as the verdict of the jury was against the evidence. x There was some conflict of evidence in reference to some facts; but there was no conflict in reference to the fact that the property was found in the possession of Cage, at the time the levy was made. It appeared that Cage had sold and delivered the property to plaintiff; but, that plaintiff had the property at the stable of Cage, with other property claimed by plaintiff.
There was not such a continual change of possession, as to make the title pass as against creditors. "Vance v. Boynton, Oct. Term, 1857. Judgment reversed, new trial granted, and cause remanded.
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