sought it in separate actions." And again the same author points out that because two causes of action originated or happened at the same time it does not follow that each arose out of the same transaction. Time, therefore, is not necessarily an important element. As instances where the courts have held the joinder to be proper, the following may be mentioned: An action wherein the plaintiff sought damages for the breach of a contract of carriage, and also for fraudulent and oppressive conduct on the part of the carrier, producing great bodily and mental suffering;12 an action to set aside conveyances alleged to be fraudulent and to recover possession of the land;13 an action to recover damages for breach of a contract of carriage and for violation of the defendant's duty as a common carrier;11 an action for damages for the breach of a contract relating to property and for injury to the property;15 an action to reform a policy of insurance and for recovery on the reformed policy;16 an action to set aside a release of damages for personal injuries and for recovery of damages; an action to abate a nuisance and to recover a penalty of ten dollars for every day the nuisance remained after notice to remove it.18 § 192. Must affect all parties to the action.-Another positive provision of the code is that the causes of action so united must affect all the parties to the action, and not require different places of trial. It will be noted that there is no requirement that all the parties shall be affected equally. "The test is whether or not the parties joined in the suit have one connected interest centering in the point in issue in the cause, or one common point of litigation. If so, unconnected parties may be joined, even where different relief is sought against them.” 19 In other words, all of the plaintiffs and all of the defendants must have a common interest or connection centering in the point in issue. 12 Jones v. Steamship Cortes, 17 Cal. 487, 79 Am. Dec. 142. 13 Pfister v. Dascey, 65 Cal. 405, 4 Pac. 393. 14 Sloane v. Southern California Ry. Co., 111 Cal. 677, 44 Pac. 320, 32 L. R. A. 193. 18 Badger v. Benedict, 1 Hilt. (N. Y.), 414. 16 McHoney v. German Ins. Co., 44 Mo. App. 426. 17 Blair v. Chicago etc. R. R. Co., 89 Mo. 383, 1 S. W. 350. 18 Bailey v. Dale, 71 Cal. 34, 11 Pac. 804. 19 Baylies' Code Pl., ch. 9, § 8. A cause of action for a separate tort cannot be united with one for a joint tort;20 nor a cause of action against one defendant with a cause of action against both.21 And in an action against two or more persons, founded on a joint promise, recovery cannot be had on proof of a separate and distinct promise by each.22 A vendor cannot unite in the same action a claim against a broker for damages for the fraudulent sale of land with a claim against the purchaser for a reconveyance.23 In such a case there is no common point of litigation affecting both defendants. An action against a sheriff and his official bondsmen, alleging only a cause of action against the sheriff as a trespasser, and against his sureties as signers of his bond, and not otherwise, involves a misjoinder of causes of action.24 In an action by the owners in severalty of distinct parcels of land to restrain the defendant from depriving them of water carried by various ditches to their respective lands, and to recover damages for past diversions of water, it was held that the cause of action for damages was several as to each of the defendants, and could not be joined with a cause of action for an injunction, which was common to all of them.25 On the other hand, we can readily see the propriety of joining in an action by a judgment creditor against a judgment debtor to have a conveyance set aside, all parties having liens or incumbrances on the property conveyed. In such a case the common point in litigation is the fraudulent transfer of the property, and it affects all of the parties. 28 So, also, an action in the nature of a creditor's bill may be brought against several judgment debtors to reach legacies bequeathed to the defendants in severalty.27 § 193. Separate statement of causes of action.-Under the same provision of the code28 it is required that each cause of action so united must be separately and distinctly stated. And a complaint which fails to keep separate the different grounds 20 White v. Preston (Tex. App.), 15 S. W. 712. 21 Atchison R. R. Co. v. Sumner County, 51 Kan. 617, 33 Pac. 312; Addicken v. Schrubbe, 45 Iowa, 315; Hess v. Buffalo etc. R. R. Co., 29 Barb. 391. 22 Jackson v. Bush, 82 Ala. 396, 1 South. 175. 23 Gardner v. Ogden, 22 N. Y. 327, 78 Am. Dec. 192. 24 Ghirardelli v. Bourland, 32 Cal. 585. 25 Barham v. Hostetter, 67 Cal. 272, 7 Pac. 689. 26 Mahler v. Schmidt, 43 Hun, 512. 27 Bradner v. Holland, 33 Hun, 288. 28 Cal. Code Civ. Proc., § 427. of action, but confuses and blends them in one statement, is open to the objection of duplicity.29 Each separate and distinct proposition of each cause of action should be separately set forth, and logical order should be observed in the statement of the premises, leaving the conclusions of law deducible therefrom to be drawn by the court. The better practice is to number each cause of action, and each proposition of each cause of action.30 The causes of action required to be separately stated are such as by law entitle the plaintiff to separate actions, and each of which would be a perfect cause of action in itself. And each statement should be introduced with appropriate words to designate it as such.31 32 Each statement must be complete in itself, or must be made so by express reference to other parts of the pleadings. The common law permitted reference to be made to other allegations in a pleading. This practice has become quite prevalent in the code states, and where the reference to a preceding count is definite and certain it would seem that no valid objection can be taken to it.33 Where two causes of action are not separately stated, the objection cannot be raised by demurrer on the ground that several causes of action are improperly united; the remedy is by a motion to make the pleading more certain and definite by separating and distinctly stating the different causes of action. The mere fact that both legal and equitable relief are sought in the same action does not make the pleading objectionable in this respect, if the right to such relief is based on the same facts.35 34 The separate statement of causes of action required under the code system is in harmony with the common-law practice of introducing several counts in the declaration. It has been 29 Hough v. Hough, 25 Or. 218, 35 Pac. 249. 30 Benedict v. Seymour, 6 How. Pr. 298; Blanchard v. Strait, 8 How. Pr. 83. 31 Benedict v. Seymour, 6 How. Pr. 298; Lippencott v. Goodwin, 8 How. Pr. 242. 32 Watson v. San Francisco etc. R. R. Co., 41 Cal. 17. 33 Bidwell v. Babcock, 87 Cal. 29, 25 Pac. 752; Green v. Clifford, 94 Cal. 49, 29 Pac. 331; Treweek v. Howard, P. P. F. Vol. I-9 36 105 Cal 442, 39 Pac. 20; Jasper v. Hazen, 2 N. Dak. 406, 51 N. W. 583. 34 City Carpet etc. Works v. Jones, 102 Cal. 506, 36 Pac. 841; Sutter County v. McGriff, 130 Cal. 126, 62 Pac. 412; San Francisco Pav. Co. v. Fairfield, 134 Cal. 226, 66 Pac. 255. 35 San Diego Water Co. v. Flume Co., 108 Cal. 549, 41 Pac. 495, 29 L. R. A. 839. 36 Benedict v. Seymour, 6 How. Pr. 298. somewhat loosely held that the paragraphs in a code complaint take the place of the counts in a common-law declaration;37 but this statement is apt to be misleading and the use of paragraphs alone will not always determine the question whether the pleader is attempting to set out more than one cause of action. Thus in an action for false arrest, where the complaint alleged two arrests on different days, and each arrest was set out in a different paragraph, the court could not determine whether the plaintiff intended to set forth two causes of action, and held that a motion to require the plaintiff to separately state and number the causes of action should be granted. The only safe rule is to so frame the statement of each cause of action that it will contain in and of itself all the facts necessary to a recovery, so that if everything else were stricken from the pleading the plaintiff would still be entitled to judgment. 39 38 § 194. Accounts.-When separate accounts between the same parties are separate causes of action, they may be separately stated. The plaintiff may demand in the same action that defendant account for and refund a proportion of the outfit and advances made on a joint adventure.1o § 195. Causes of action may be united.-The plaintiff may unite several causes of action in the same complaint when they arise from and constitute part of the same transaction," if such union does not amount to a misjoinder, in which case the objection can be raised only by demurrer.42 Actions so united must affect all the parties to the action, and not require different places of trial; but the defendants need not be all equally affected. If defendant is clearly entitled to a change of venue, to the county of his residence, plaintiff cannot abridge that right 37 Norman v. Rogers, 29 Ark. 365; Hunt v. City of San Francisco, 11 Cal. 250. 38 Oakley v. Tuthill, 7 Civ. Proc. Rep. (N. Y.), 339. In Prows v. Ohio Valley Ins. Co., 2 Cin. Sup. Ct. Rep. 14, a complaint made up of several paragraphs was held to state only one cause of action. See also Keens v. Gaslin, 24 Neb. 310, 38 N. W. 797. 39 Phillips v. Berick, 16 Johns. 136; 8 Am. Dec. 299; Stevens v. Lockwood, 13 Wend. 644, 28 Am. Dec. 492; Staples v. Goodrich, 21 Barb. 317; 40 Garr v. Redman, 6 Cal. 574. 42 Fritz v. Fritz, 23 Ind. 388. 43 Earle v. Scott, 50 How. Pr. 506. See Van Wagenen v. Kemp, 7 Hun, 328; Ladd v. James, 10 Ohio St. 437. See Nichols v. Drew, 25 Hun, 315, 94 N. Y. 22. by joining in the complaint a third cause of action properly triable in the county where suit is brought." An action for goods sold and one for the price of goods wrongfully taken from a third person and sold, may be joined, the tort in the latter having been waived by its assignment. All causes of action joined must belong to the same class, and must be consistent with each other.47 46 45 In an action for divorce and alimony it is not an improper joinder of causes of action to seek at the same time to set aside certain fraudulent conveyances on which an award of alimony is dependent.48 In an action by a stockholder in a mining corporation to recover against the directors the statutory penalty for failure to post a verified balance-sheet for the previous month, a complaint which alleges in one count more than one failure on the part of the directors to make the required posting, and seeks to recover a penalty of one thousand dollars for each failure, does not join several distinct causes of action.49 Where the complaint. sets forth only one cause of action for fraudulent misappropriation by a trustee of the funds of a corporation, and the relief sought has reference only to this cause of action, it is no objection to the complaint that the relief sought is not single.50 Where actions are united, the court should require the pleadings to be reconstructed as in one suit, and one judgment should be rendered settling the entire controversy.51 The court should determine what costs, if any, should be charged to either party in the original suits, the subsequent costs being chargeable only in the consolidated action.52 § 196. Claims in two capacities.-Claims against trustees by virtue of a contract, or by operation of law, may be joined.53 So a trust and a vendor's lien may be united in one action.** Counts on promises to the testator and to his executor in his representative capacity may be joined.55 Where the same person 44 Bond v. Hurd, 31 Mont. 314, 78 Pac. 579. 45 Hawk v. Thorn, 54 Barb. 164. 46 Cleveland v. Barrows, 59 Barb. 364; Thomas v. Utica R. R. Co., 97 N. Y. 245; Bowen v. Mandeville, 95 N. Y. 237; Krower v. Reynolds, 99 N. Y. 245, 1 N. E. 775. 47 Smith v. Hallock, 8 How. Pr. 73. 48 Prouty v. Prouty, 4 Wash. 174, 29 Pac. 1049. 49 Loveland v. Garner, 71 Cal. 541, 12 Pac. 616. 50 Wickersham V. Crittenden, 93 Cal. 17, 28 Pac. 788. 51 Handley v. Sprinkle, 31 Mont. 57, 77 Pac. 296; Mont. Rev. Codes, § 7187. 52 Handley v. Sprinkle, 31 Mont. 57, 77 Pac. 296. 53 Cal. Code Civ. Proc., § 427. 54 Burt v. Wilson, 28 Cal. 632, 87 Am. Dec. 142. 55 Brown v. Webber, 6 Cush. 571; Sullivan v. Holker, 15 Mass. 374. |