Opinion
No. 42392.
November 20, 1934.
PARTIES: Defendants — Fraud — Joinder of Corporations and Officers. Two corporations, each organized by the same promoters, for identically the same purpose, and officered by the same officers, may be joined with the common president, in an action based upon a single joint transaction wherein the said president in the sale of corporate stock of both corporations made false representations in the interest of and for the benefit of both corporations.
Appeal from Polk District Court. — JOHN J. HALLORAN, Judge.
This is essentially an action for damages for false representations, stated in two counts against three defendants. The defendants filed a motion to strike certain allegations of the plaintiff's pleading, which motion was duly overruled. At a later date the three defendants each filed a motion to strike the cause of action as against himself because of misjoinder. These motions were all overruled on the ground that they were in violation of the prohibition contained in section 11135 of the Code, which provides that only one motion of the same kind to strike a pleading may be filed. As against this, the defendants rely upon section 10963, which provides that a motion to strike for misjoinder may be filed at any time before answer. The question argued in the briefs is that of the proper interpretation of the two cited sections. — Affirmed.
Brammer, Brody, Charlton Parker, for appellants.
Guy A. Miller, for appellee.
The plaintiff's petition discloses in substance the following facts: The two corporate defendants are full sisters. Both were organized and have ever since been officered by the same promoters; and were so organized and operated for the same purpose. Carl Dixon was, and is, the president of each. One Simpson was, and is, the secretary and treasurer of each. Simpson was a stenographer and employee of Dixon. The cause of action is predicated upon a single joint transaction wherein Dixon is alleged to have acted for both corporations and to have made false representations in the interest and to the benefit of both corporations. They were so made in the sale by Dixon to the plaintiff of the shares of stock of both corporations. There was but one transaction had. The sale of stock of each corporation was accomplished by the same false representations. For this reason alone the motions to strike for misjoinder were not tenable. If the court erred in its interpretation of section 10963, the error was without prejudice and we have no occasion to pass upon it. We do not presume to prejudge the sufficiency of the pleading. We only hold that it discloses a joint transaction and that the parties named were properly joined.
The order appealed from is accordingly affirmed.
MITCHELL, C.J., and STEVENS, DONEGAN, and KINDIG, JJ., concur.