lies to the relief prayed by a complaint, if the facts alleged therein show that plaintiff is entitled to any substantial relief. Kenaston v. Lorig, 81 Minn. 454, 84 N. W. 323, collecting cases at page 458 of 81 Minn., and page 324 of 84 N. W.

The question whether the demurrer addressed to the improper joinder of causes of action would have here availed is not raised by the record.

3. The question, then, arises whether the parties named were necessary and proper parties to the equitable proceeding.

In Shields v. Barrow, 17 How. (U. S.) 130, 139, 15 L. Ed. 158, Curtis, J., points out three classes of parties to a bill in equity. "They are: (1) Formal parties. (2) Persons having an interest in the controversy, who ought to be made parties, in order that the court may act on that rule which requires it to decide on and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. These persons are commonly termed 'necessary parties'; but if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties. (3) Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience. A bill to rescind a contract affords an example of this kind; for, if only a part of those interested in the contract are before the court, a decree of rescission must either destroy the rights of those who are absent, or leave the contract in full force as respects them, while it is set aside, and the contracting parties restored to their former condition, as to the others. We do not say that no case can arise in which this may be done; but it must be a case in which the rights of those before the court are completely separable from the rights of those absent, otherwise the latter are indispensable parties." And see Barney v. Baltimore City, 6 Wall. (U. S.) 280, 18 L. Ed. 825; Minnesota v. Northern Securities Co., 184 U. S. 199, 236, 22 Sup.. Ct. 308, 46 L. Ed. 499; Smith v. Brittenham, 109 Ill. 540; Shipman, Eq. Pl. §§ 18, 19, 20. The rule in this state accords. Crump v. Ingersoll, 44 Minn. 84, 46 N. W. 141. And see Watson v. Chicago, M. & St. P. Ry. Co., 46 Minn. 321, 48 N. W. 1129. Cf. Sprague v. Wells, 47 Minn. 504, 50 N. W. 535.

The rights of the Disbrow associates as owners of legal interests under the contracts attached to the complaint, to whom promises were made, and from whom consideration passed, were shown to have been so intimately related with those of the plaintiff as not to be capable of being adequately separated from his rights. A detailed statement of the contract provisions necessitating this conclusion would merely incumber the record and serve no useful purpose. It is evident that they were "all in together."

4. The final and essential controversy involves certain assumptions for present purposes only, which, we understand, are agreed upon, viz., that, apart from the question as to the defect of parties, the complaint stated good causes of action in tort and in equity and was not demurrable for want of facts (see 8 Current Law, 1386) and that the parties to the cause of action in tort are proper and sufficient. The ultimate question on these assumptions is whether the fact that the parties named in the demurrer were not necessary parties to the action in tort was good reason why the demurrer should not be sustained because they were necessary and missing parties to the equitable proceeding; that is to say, in one aspect of this proceeding, in which it is viewed as an action in tort, plaintiff is entitled to some relief when suing alone, and in another aspect, in which equitable relief is sought, the trial court held that plaintiff was entitled to relief only by joining other parties. We are of opinion that under these circumstances the trial court properly sustained the demurrer.

The merit of common-law, as distinguished from code, pleading, was that it tended directly to produce single and definite issues. It wasted no time in so doing. The party complaining must originally have proceeded either in law or in equity-if in law, in contract or on the tort, and by means of a definitely recognized form; and if in equity, under a recognized head of equitable jurisprudence. The present complaint it would have promptly rejected or pruned. It will sometimes happen that when, under the code, one of these "omnibus" or "blunderbúss" complaints is sought to be utilized, substantially the same result is finally reached as at common law. It has proved impossible to make the law of remedies independent of the law of substantive rights. Each had its origin in history. Each has incorporated that historical development. The alteration in the law of remedies by the code must necessarily have a limited effect, unless there was a corresponding change in the law of substantive rights. The code did not purport to alter the law substantive. In the absence of previous correction of such a pleading, there comes, moreover, a time under the practice in this state when the case must go on the court or the jury calendar. It cannot go on both at the same time. This necessitates a definite theory on plaintiff's part. If the case goes on the jury calendar, plaintiff may have a cause of action in tort or in contract. If the case goes on the court calendar, it is controlled by ordinary principles of equitable jurisprudence, in aid of which issues may, in proper cases, be framed and submitted to a jury, and tried in law. This practice is largely for convenience. It may happen that an equity case may get on the jury calendar, and that the court, who is at once a chancellor and a judge at law, may none the less, for example, reform a contract and submit damages for its breach as reformed to the jury. But in no tenable view is the primary distinction between legal and equitable causes of action and kinds of relief abolished, or rules of inconsistency destroyed. Plaintiff is, of course, bound by his own election. When his pleading is confused or inconsistent, and a motion has been made to place it on a particular calendar, he is equally bound by the proper construction of the trial court as to what cause or causes of action his pleading must be regarded as having set forth. Todd v. Bettingen, 102 Minn. 260, 113 N. W. 906. This is entirely consistent with the more liberal view of code practice, viz.: "When the plaintiff is clothed with primary rights, both legal and equitable, growing out of the same cause of action on the same transaction and is entitled to an equitable remedy, and also to a further legal remedy, based upon the supposition that the equitable relief is granted, and he sets forth in his complaint or petition the facts which support each class of rights, and which show that he is entitled to each kind of remedy, and demands a judgment awarding both species of relief, the action will be sustained to its full extent in the form thus adopted. He may, on the trial, prove all the facts averred, and the court will, in its judgment, formally grant both the equitable and the legal relief." Pomeroy, Rem. & Rem. Rights, p. 96, § 78. See Guernsey v. American Ins. Co., 17 Minn. 83 (104); Montgomery v. McEwen, 7 Minn. 276 (351).

When this case in due course will come to be placed upon the calendar, it must go on the jury cases or court cases. If plaintiff should then elect to put it on the jury cases-that is, to sue in tort-no prejudice would result from an overruling of the demurrer. If, however, he should elect to put it on the court calendar-that is, to proceed in equity-then, if no demurrer had been interposed and sustained, defendant would be unable to complain of the defect of parties plaintiff; for, if a defect of parties plaintiff or defendant appears upon the face of the complaint, the objection addressed to that point must be taken by demurrer, or it is waived. Section 4129, R. L. 1905. And see Mason v. St. Paul F. & M. Ins. Co., 82 Minn. 336, 85 N. W. 13, 83 Am. St. 433. The defect of parties here appeared on the face of the complaint. Defendants were therefore properly upheld in their "notice that they insisted upon a statutory right." If the trial court had not sustained the demurrer, "the statutory right to demur for lack of necessary parties ceases to be a shield and becomes a pitfall for the defendant."

On argument in this court we understood counsel for plaintiff to have expressed a willingness to elect to sue on a tort only. The place for making that election is in the trial court, and the time before appeal was taken, or after the remittitur herein has been handed down. Affirmed.

J. W. HOSTETTER v. ILLINOIS CENTRAL RAILROAD COMPANY.1

Evidence-Objections.

March 27, 1908.

Nos. 15,441-(137).

When evidence is received as pertinent to the issues in a given case, and that evidence would also be pertinent to another issue, which might have been, but was not, made by the pleadings, its reception is no waiver of the objection to such other issue. Livingston v. Ives, 35 Minn. 55, approved and applied.

Allegation of Negligence.

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2.....

A complaint alleged that plaintiff was engaged with a crew of workmen in picking up steel rails scattered alongside the track and loading them on cars which were moved immediately in front. The allegation of negligence was as follows: "That in so doing, by reason of the negligence and carelessness of the said superintendent or the overseer in work, and by reason * of the negligence and carelessness of other servants and employees of said defendant, who were operating and moving said locomotive engine *." It is held that this complaint charged negligence only on the part of the superintendent and of the servants who were engaged in moving and operating the engine, and not on the part of the crew.

Trial of Issues.

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The fact that the evidence introduced which tended to establish these bases of liability charged by the complaint also tended to prove negligence on the part of the crew did not necessarily constitute voluntary litigation of the issues of negligence of the crew, which was not pleaded. Submission of Issue.

The submission to the jury of the negligence of the crew as a distinct basis of recovery, despite defendant's adequate request to charge to the contrary, is held to have been reversible error.

Action in the district court for Freeborn county by the parent of a minor son, Arthur Hostetter, to recover $2,000 damages for personal injuries. The case was tried before Kingsley, J., and a jury which rendered a verdict in favor of plaintiff for $1,600. From an order denying its motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Reversed and new trial granted.