C.r.c.p. 20
C.r.c.p. 20
Annotation I. General Consideration. Law reviews. For article, "Pleadings, Rules 7 to 25 ", see 28 Dicta 368 (1951). For article, "One Year Review of Civil Procedure", see 34 Dicta 69 (1957). For article, "Immunity to Direct Action: Is it a Defense to a Contribution Claim?", see 52 U. Colo. L. Rev. 151 (1980). It is within sound discretion of trial court to drop or strike parties, and decision will not be reversed on appeal unless abuse is shown. Corbin by Corbin v. City and County of Denver, 735 P.2d 214 (Colo. App. 1987). Applied in M & G Engines v. Mroch, 631 P.2d 1177 (Colo. App. 1981); Bd. of County Comm'rs v. District Court, 632 P.2d 1017 (Colo. 1981); Thorne v. Bd. of County Comm'rs, 638 P.2d 69 (Colo. 1981); Creditor's Serv., Inc. v. Shaffer, 659 P.2d 694 (Colo. App. 1982); W.R. Hall Constr. Co. v. H.W. Moore Equip. Co., 661 P.2d 1183 (Colo. App. 1982). II. Permissive Joinder. Law reviews. For article, "Direct Action Against the Liability Insurer Under the Rules of Civil Procedure", see 22 Dicta 314 (1945). This rule relates to joinder of parties and has no application to misjoinder of claims. Colo. State Bd. of Exam'rs of Architects v. District Court, 126 Colo. 340, 249 P.2d 146 (1952). This rule relates to multiple plaintiffs and defendants in actions involving common questions of law or fact. Jernigan v. Lakeside Park Co., 136 Colo. 141, 314 P.2d 693 (1957). There must be such a common question among defendants. Section (a) of this rule requires, in order that a joinder of multiple parties and claims may be sustained, that there shall be a common question of law or fact among the defendants as well as among the plaintiffs. Western Homes, Inc. v. District Court, 133 Colo. 304, 296 P.2d 460 (1956). It is no longer necessary that each plaintiff have an interest in claims of the other plaintiffs before joining in a common suit with them. Western Homes, Inc. v. District Court, 133 Colo. 304, 296 P.2d 460 (1956); Schwab v. Martin, 165 Colo. 547, 441 P.2d 17 (1968). Individual claims do not result in a fatal misjoinder. The fact that the claim of each plaintiff is individually his own and free from any right of other plaintiffs to share therein does not result in a fatal misjoinder either of parties or claims. Western Homes, Inc. v. District Court, 133 Colo. 304, 296 P.2d 460 (1956). Such joinder is discretionary. When the grounds upon which liability is based are mutually exclusive, a request for a joinder pursuant to section (a) of this rule, which deals with permissive parties, is addressed to the sound discretion of the trial court. Draper v. Sch. Dist. No. 1, 175 Colo. 216, 486 P.2d 1048 (1971). Broadest possible reading, to rule's permissive language is desirable. In view of the full protection allowed by C.R.C.P. 42(b) and section (b) of this rule, it is desirable to give the broadest possible reading to the permissive language of section (a) of this rule. Sutterfield v. District Court, 165 Colo. 225, 438 P.2d 236 (1968). In action for death caused by negligent operation of motor vehicle, the owner was properly joined with the driver as a party defendant under this rule. Drake v. Hodges, 114 Colo. 10, 161 P.2d 338 (1945). The administrative law judge's (ALJ) reliance on this rule was misplaced. This rule was not the proper vehicle by which to accomplish joinder because the plaintiff did not, in the first instance, assert any right to relief against the parties whom the ALJ ordered to be joined. However, the ALJ did not abuse his discretion by joining those parties because the question of their liability had been raised and the joinder posed no risk of prejudice. Renaissance Salon v. Indus. Claim Appeals Office, 994 P.2d 447 (Colo. App. 1999). Applied in Arms Roofing Co. v. Petrie, 136 Colo. 154, 314 P.2d 903 (1957); Twin Lakes Reservoir & Canal Co. v. Bond, 156 Colo. 433, 399 P.2d 793 (1965); O'Neal v. Reliance Mortg. Corp., 721 P.2d 1230 (Colo. App. 1986). III. Separate Trials. A trial judge is permitted wide discretion when he finds that the necessary prerequisites to separate trials laid down by this rule exist. Sutterfield v. District Court, 165 Colo. 225, 438 P.2d 236 (1968). Severance cannot be sustained without proper findings. Where a trial court makes no finding that any of the conditions permitting separate trials of properly joined claims are present, a severance cannot be sustained until proper findings are made. Sutterfield v. District Court, 165 Colo. 225, 438 P.2d 236 (1968). IV. Parties Jointly or Severally Liable. A. In General. Annotator's note. Since section (c) of this rule is similar to § 13 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. The effect of this rule is to abrogate the common-law rule respecting parties to actions on joint contracts of the descriptions specified. Mattison v. Childs, 5 Colo. 78 (1879). Common-law rule not changed where a joint maker dies. A joint maker having died, a separate action is maintainable against either the survivor or the executors of the deceased, but they cannot, however, be joined in the same action; as against one the judgment would be "de bonis propriis", and against the other "de bonis testatoris". In this respect, this rule is not believed to have changed the common-law rule. Mattison v. Childs, 5 Colo. 78 (1879). This rule does not purport in any way to alter the obligations which parties have assumed in their contracts. Bennett v. Morse, 6 Colo. App. 122, 39 P. 582 (1895). The rule does not make a contract valid which would otherwise be invalid. Bennett v. Morse, 6 Colo. App. 122, 39 P. 582 (1895). The rule operates merely as an enlargement of the remedy upon a contract, permitting suit to be brought against any of the parties liable or against all, at the plaintiff's pleasure. Bennett v. Morse, 6 Colo. App. 122, 39 P. 582 (1895). Where parties contract jointly, there must be a joint liability in order that there may be a several liability, for, if a joint agreement is invalid or incapable of enforcement against all of its makers, it is invalid and incapable of enforcement against any one or more of them. Bennett v. Morse, 6 Colo. App. 122, 39 P. 582 (1895). A stranger to a contract cannot become a party to it without consent of both parties. Kruschke v. Quatsoe, 49 Colo. 312, 112 P. 769 (1910). A stranger cannot become a surety without such consent within the meaning of this rule, which, in this respect, applies only to persons jointly or severally liable upon the same instrument, including parties to bills of exchange and promissory notes as well as sureties on the same or separate instruments, and not to the independent volunteer guarantor of the payment of the instrument executed by other parties. Kruschke v. Quatsoe, 49 Colo. 312, 112 P. 769 (1910). Where an action is dismissed as to the principal and continued as to the surety, it is the same as though the action in the first instance had been brought by the obligee against the surety only, and this is permitted by this rule. McAllister v. People, 28 Colo. 156, 63 P. 308 (1900). If a judgment creditor seeks by "scire facias" to keep a judgment in force, then he must proceed against all defendants. Allen v. Patterson, 69 Colo. 302, 194 P. 934 (1920). If the judgment creditor selects a new action on the judgment, he need join only such as he elects to join; this conclusion is not only supported by the weight of authority, but is in accord with principles of harmonious and consistent procedure and also with equity and good conscience. Allen v. Patterson, 69 Colo. 302, 194 P. 934 (1920). This rule is intended to include proceedings in other tribunals besides courts of record. Hughes v. Fisher, 10 Colo. 383, 15 P. 702 (1887). This rule applies to actions on appeal bonds. Wilson v. Welch, 8 Colo. App. 210, 46 P. 106 (1896), aff'd, 12 Colo. App. 185, 55 P. 201 (1898). B. Joint and Several Obligations. Whenever the word "obligation" is used as the name of a contract as it is in this rule, an agreement in writing, sealed or unsealed, is referred to, but, where, in a legislative provision, it is used with reference to legal duty or liability, such duty or liability may arise from an oral or written contract, or, in some instances, from actionable tortious conduct. The word is used in statutes, as well as in textbooks and decisions, with these different meanings, and the significance to be given it in each statute must be gathered from the purpose and context of the enactment. Exchange Bank v. Ford, 7 Colo. 314, 3 P. 449 (1884); Sawyer v. Armstrong, 23 Colo. 287, 47 P. 391 (1896). "Obligation", as employed in this rule, does not embrace or apply to oral contracts. Exchange Bank v. Ford, 7 Colo. 314, 3 P. 449 (1884); Townsend v. Heath, 106 Colo. 273, 103 P.2d 691 (1940). It is argued that giving this restricted meaning to the word "obligation" in this rule renders the word "instrument" entirely superfluous; that "instrument" includes all written contracts, sealed as well as simple; and that, unless a court assents to the proposition that "obligation" includes oral contracts, it violates the rule requiring effect to be given, if possible, to all the language. The use of the word "obligation" under the common law was originally confined to sealed instruments of a certain kind, and courts have not always given it the significance adopted under this rule. Exchange Bank v. Ford, 7 Colo. 314, 3 P. 449 (1884). A joint obligation will not support a judgment in an action brought against but one of the joint obligors. Erskine v. Russell, 43 Colo. 449, 96 P. 249 (1908). A firm's debts are joint obligations, not joint and several, and action therefore must be brought against the firm, not against an individual member. Erskine v. Russell, 43 Colo. 449, 96 P. 249 (1908). In an action against an individual for rent under a lease signed by him where it appears that the lease was made to defendant's firm and that defendant was not acting in his individual capacity, the partner should be made a party to the suit. Erskine v. Russell, 43 Colo. 449, 96 P. 249 (1908). This rule does not apply to partnership obligations. Thompson v. White, 25 Colo. 226, 54 P. 718 (1898). An action cannot be maintained against the executor or administrator of a deceased partner upon a partnership contract, whether such contract be written or oral, unless it be shown that the partnership has been finally settled and that the partnership assets are insufficient to pay the firm debts. Thompson v. White, 25 Colo. 226, 54 P. 718 (1898). A contention made by defendant that his "partner" is an indispensable party to an action on a promissory note is without merit where there previously has been an action for a partnership accounting and termination brought by the "partner" which was settled by a stipulation in which defendant agreed to pay certain obligations, including the unpaid balance on the note in question. Sakal v. Donnelly, 30 Colo. App. 384, 494 P.2d 1316 (1972). Where an obligation is joint and several, an action is proper against either of the joint makers. Milner Bank & Trust Co. v. Estate of Whipple, 61 Colo. 252, 156 P. 1098 (1916). Where a surety agreement provides that the principal and surety will be jointly and severally liable, a creditor may, at his option, bring an action against both the principal and the surety or either one alone. Fountain Sand & Gravel Co. v. Chilton Constr., 40 Colo. App. 363, 578 P.2d 664 (1978). One who has indorsed a promissory note previous to its delivery is a maker, and the obligation is joint and several. Tabor v. Miles, 5 Colo. App. 127, 38 P. 64 (1894). Holder may sue indorser after obtaining judgment against maker. Under this rule the holder of a note who sues the maker and indorser as joint makers, dismisses as to the indorser without prejudice, and obtains judgment against the maker may afterwards sue the indorser. Hamill v. Ward, 14 Colo. 277, 23 P. 330 (1890). Obligee on appeal bond may sue surety with or without principal. The obligee in a bond given on appeal may, if he so elects, sue the surety thereon without joining the principals, or having joined them and not having procured service of summons upon them, may proceed against the defendant served as if he were the only defendant. Lux v. McLeod, 19 Colo. 465, 36 P. 246 (1894). Where the liability is several, the parties may be joined. Upon a contract expressing a several liability of the defendants, they may, under this rule, be joined in an action thereon; this construction is in accord with the reform spirit and express purpose of code practice. Irwine v. Wood, 7 Colo. 477, 4 P. 783 (1884). It is perfectly proper to unite in one suit both the maker and the acceptor of an instrument. Hughes v. Fisher, 10 Colo. 383, 15 P. 702 (1887). Where an agreement is regarded as one of suretyship and not of guarantee, the subscribers are liable severally as well as jointly. News-Times Publishing Co. v. Doolittle, 51 Colo. 386, 118 P. 974 (1911). A receiver and purchaser of a railroad may both be proper parties in an action for damages. Where a passenger on a railroad is killed after a foreclosure sale of the road, but before the sale has been consummated and while the road is still being operated by a receiver, and the decree of foreclosure provides that the purchasers should take the property upon condition that they should pay all indebtedness, obligations, or liabilities legally contracted or incurred by the receiver before the delivery of possession, to the extent that the assets or proceeds in the hands of the receiver are insufficient for that purpose, and the property is conveyed to the purchaser and the receiver is discharged under an order which provides that the discharge should not operate to prevent the prosecution in the name of the receiver of any suit then pending, or from defending any suit then pending or which might thereafter be brought against him as such receiver, the receiver and purchaser are both proper parties defendant to an action for damages for the death of such passenger brought after the discharge of such receiver. Denver & R. G. R. R. v. Gunning, 33 Colo. 280, 80 P. 727 (1904). This rule does not apply to an action against two persons who, acting separately, deprive one of what belongs to him, as they are in no sense liable jointly or severally as contemplated. Millard v. Miller, 39 Colo. 103, 88 P. 845 (1907). Where two parties, acting separately, appropriated to their respective use certain lands belonging to plaintiff, the liability, if any, against them is several and must be availed of, if at all, in separate actions. Millard v. Miller, 39 Colo. 103, 88 P. 845 (1907). Defendant-lawyer is not proper party to action by seller against buyer and guarantor. Where sellers of personal property had two distinct claims: an action on a note and other matters against the buyer and the guarantor and a malpractice action against the lawyer, the lawyer would not have been either a proper or necessary party to the other lawsuit. Deaton v. Mason, 616 P.2d 994 (Colo. App. 1980). Applied in Wilder v. Baker, 147 Colo. 92, 362 P.2d 1045 (1961).
For joinder of persons needed for just adjudication, see C.R.C.P. 19.