for demurrer in Kansas.4 The misjoinder of husband and wife. must be taken advantage of on demurrer.95

§ 280. Too many plaintiffs.-The ground of demurrer allowed by the code, "that there is a defect of parties plaintiff or defendant," does not reach a case where there are too many plaintiffs or too many defendants, but only cases where parties are omitted. It is the same as nonjoinder at law, and the omission of a necessary party in equity.96 Where too many parties are brought in, a demurrer upon the ground that the complaint did not state facts. sufficient to constitute a cause of action, in favor of or against the improper parties, would be the proper remedy." So held in the case of a misjoinder of defendants.98 So held in case of a misjoinder of plaintiffs.99 By the practice in California it is well. settled that the objection that too many parties are joined as plaintiff's must be taken advantage of by demurrer, if it appear on the face of the complaint, and by answer, if it does not so appear; otherwise the objection is waived. 100 Denial does not raise issue of misjoinder of plaintiffs. Where two are joined as plaintiff's in an action for the recovery of possession of land, a denial in the answer that the plaintiff's were in possession of the land does not present the issue of a misjoinder of either of the plaintiffs. 101 Nor can the question of a misjoinder of the parties be raised under a demurrer interposed upon the ground that the complaint does not state facts sufficient to constitute a cause of action.102 Where a co-defendant claimed that he was an unnecessary party to a suit, he should have demurred to the petition, and could not, in the course of the trial, demand that his name be stricken out." Where nothing appears on the face of the complaint to indicate a misjoinder of defend

94 Atchison etc. R. R. Co. v. Huitt, 1 Kan. App. 788, 41 Pac. 1051.

95 Tissot v. Throckmorton, 6 Cal. 471; Dunderdale v. Grymes, 16 How. Pr. 195; Avogadro v. Bull, 4 E. D. Smith, 384; Bartow v. Draper, 5 Duer, 130.

96 Palmer v. Davis, 28 N. Y. 242; Kolls v. De Lever, 17 Abb. Pr. 312, 41 Barb. 208, 26 How. Pr. 468; Dean v. English, 18 B. Mon. 132; Gilman v. Rives, 10 Pet. 298, 9 L. Ed. 432. 07 Cohen v. Ottenheimer, 13 Or. 220, 10 Pac. 20.

98 New York etc. R. R. Co. v. Schuyler, 7 Abb. Pr. 41; Manning v.

103

State of Nicaragua etc. Co., 14 How.
Pr. 517.

99 Peabody v. Washington County Mut. Ins. Co., 20 Barb. 339, followed by Gregory v. Oaksmith, 12 How. Pr. 134; People v. Mayor of New York, 28 Barb. 240, 8 Abb. Pr. 7. But the contrary to the general proposition of this rule was held in Leavitt v. Fisher, 4 Duer, 1, and Walrath v. Handy, 24 How. Pr. 353.

100 Gillam v. Sigman, 29 Cal. 637. 101 Id.

102 Tennant v. Pfister, 51 Cal. 511. 103 Soeding v. Bartlett, 35 Mo. 90.

ants a demurrer does not lie for such cause.104 Where plaintiffs offer to strike out such parties demurred to, and defendant successfully resists, such action on the part of defendants is a waiver of misjoinder.105

§ 281. Actions improperly united.-At common law, legal and equitable causes of action could not be joined. It is otherwise in California and all the Pacific states and territories, as well as in New York, Ohio, Iowa, and other states which have adopted codes of procedure. Claims to recover real or personal property may be joined with action for damages for withholding thereof; claims against a trustee legal or equitable may be joined, and any claims arising out of the same transactions connected with the same subject-matter may be joined.106 The causes of action should be separately stated.107

108

§ 282. Actions not separately stated.-It seems that in many of the states a demurrer does not lie to a complaint under this subdivision, for the defect of not separately stating two or more causes of action, they being such as might be united in one complaint if properly stated. In New York, the remedy in such case is by motion.1 Where two causes of action are not separately stated, the objection cannot be raised by a demurrer upon the ground that several causes of action are improperly united, but the remedy is by a motion to make the pleading more definite and certain by separating and distinctly stating the different causes of action."

109

§ 283. The same-Conversion.-Where the complaint alleged that defendant had become possessed of a chattel, the property of plaintiff, and wrongfully converted it to his (defendant's) use,

104 Pierson v. Fuhrmann, 1 Colo. App. 187, 27 Pac. 1015. And see Preshaw v. Dee, 6 Utah, 360, 23 Pac 763.

105 Summers v. Farish, 10 Cal. 347 106 See Cal. Code Civ. Proc., §§ 307. 427, as amended 1907.

107 Boles v. Cohen, 15 Cal. 150; Natoma Water etc. Co. v. Clarkin, 14 Cal. 547.

108 See the following authorities: Badger v. Benedict, 4 Abb. Pr. 176, 1 Hilt. 415; Lattin v. McCarty, 17 How. Pr. 239; Fickett v. Brice, 22 How. Pr.

P. P. F. Vol. I-13

195; Harsen v. Bayaud, 5 Duer, 656; Cheney v. Fisk, 22 How. Pr. 236; State v. Davis, 35 Mo. 406; Township of Hartford v. Bennett, 10 Ohio St. 441. But that a demurrer may be interposed for this cause in California, see Buckingham v. Waters, 14 Cal. 146; Early v. Mannix, 15 Cal. 150. But see, contra, Bernero v. South Boston etc. Ins. Cos., 65 Cal. 386, 4 Pac. 382.

109 Fraser v. Oakdale Lumber Co., 73 Cal. 187, 190, 14 Pac. 829; City Carpet etc. Works v. Jones, 102 Cal. 506, 38

and then demanded damages for such taking and detention, and a restitution of the chattel, it was held demurrable for improper joinder of causes of action.110 The objection must be specially assigned as the cause of demurrer.111 In an action to recover damages for the conversion of certain personal property, an objection to the complaint that it does not describe the property alleged to have been converted with sufficient particularity must be taken by special demurrer.112

§ 284. The same-When demurrer lies.-Demurrer may also be interposed when it appears on the face of the complaint "that several causes of action have been improperly united." It is one of the leading and distinguishing principles of our statute that litigation must not be conducted by piecemeal, and whenever the differences between the parties arise out of-1. The same transaction; 2. Out of many transactions of like character; 3. When but one kind of relief is prayed for; so that one writ will afford the remedy, a demurrer will not be sustained under this subdivision. By one kind of relief is meant ultimate relief. A remedy at law and equitable relief may be asked for in the same complaint. Thus, A. may sue B. for trespass, and in the same complaint show that the acts of trespass are irreparable, and ask for an injunction.113 The writ of injunction is not in such a case asked for as the ultimate writ in the case, nor for the reason that it will afford the whole of the remedy, but as a protection to the subject-matter of the action pending the litigation. So allegations of fraud in support of the cause of action, and not as constituting a separate cause, do not make improper joinder of actions.114 If, in fact, the complaint contains but a single cause of action, although a part of the facts constituting it are set forth, some in one count, as constituting one cause of action, and some in another, as constituting a separate cause of action, the defendant cannot

Pac. 841; Jacobs v. Lorenz, 98 Cal. 332, 33 Pac. 119. And that it formerly could in New York, see Acome v. American Min. Co., 11 How. Pr. 27; Strauss v. Parker, 9 How. Pr. 342; Van Namee v. People, 9 How. Pr. 198. 110 Maxwell v. Farnam, 7 How. Pr. 236.

111 Washington v. Eames, 6 Allen, 417.

112 Kelly v. Murphy, 70 Cal. 560, 12 Pac. 467.

113 Gates v. Kieff, 7 Cal. 124.

114 Campbell v. Wright, 21 How. Pr. 9; Meyer v. Van Collem, 7 Abb. Pr. 222, 28 Barb. 230. As to manner of objection to misjoinder of cause of action, see Smith v. Orser, 43 Barb. 187; Malone v. Stillwell, 15 Abb. Pr. 421.

successfully demur on the ground that the causes of action are improperly united.115

117

§ 285. The same—Continued.—Where it appears from the face of the complaint that there is a misjoinder of causes of action, the objection must be taken by demurrer, and cannot be raised for the first time on appeal.116 Such misjoinder cannot be remedied by a motion to strike out part of the pleading.1 A general demurrer to a whole complaint which contains two counts or two causes of action is properly sustained, where neither of the counts states a cause of action, and it is unnecessary that the demurrer in such case should refer to either of the counts separately.118 A cause of action for costs incurred in having to bring suit against the defendant for specific performance of an agreement to reconvey certain premises, a cause of action based upon alleged fraud, malice, and oppression of the defendant, and a cause of action arising from the breach of the defendant's written covenant of warranty of property conveyed to the plaintiff, cannot be united. And a complaint which unites and mingles together such causes of action is demurrable, on the ground that several causes of action are improperly united.119 But in a suit in equity to set aside a money judgment, the complaint stated a variety of circumstances differing in their nature, but connected with and tending to establish the alleged fraud, and it was held that the complaint was not demurrable for a misjoinder of causes of action.120

§ 286. The same-Waiver of objections.-Objections on the ground that several causes of action have been improperly united, as well as on the ground of misjoinder of parties, must be taken by demurrer or otherwise in the trial court, or they are to be deemed waived. And this ruie applies as well to actions for forcible entry and detainer as to other civil actions.121 A de

115 Hillman v. Hillman, 14 How. Pr. 456.

116 Roberts v. Eldred, 73 Cal. 394, 15 Pac. 16; Keys v. Morrison, 3 Colo. App. 441, 34 Pac. 259; Moore v. Vickers, Colo. App. 443, 34 Pac. 257; Brahoney v. Denver etc. Railroad Co., 14 Colo. 27, 23 Pac. 172.

117 Eversdon v. Mayhew, 85 Cal 1, 21 Pac. 431, 24 Pac. 382.

118 Churchill v. Pacific Imp. Co., 96 Cal. 490, 31 Pac. 560.

119 Cosgrove v. Fisk, 90 Cal. 75, 27 Pac. 56.

120 Raynor v. Mintzer, 67 Cal. 159, 7 Pac. 431.

121 Farncomb v. Stern, 18 Colo. 279, 32 Pac. 612.

murrer on the ground of misjoinder of causes of action is waived by pleading over.122 But usually, under the statutes, an answer may be filed with a demurrer without waiving the demurrer. 123 Error in overruling a demurrer for misjoinder of causes of action is immaterial if no injury resulted therefrom.124 Where two causes of action are improperly joined, failure of the court to pass upon a demurrer on that ground is not cured by sustaining a demurrer to one of the paragraphs for want of sufficient facts to state a cause of action.12

§ 287. Fraudulent conveyance. The plaintiff having a claim. against A., brought suit against him to enforce the claim, and, in the same action, sought to set aside a conveyance of real estate from A. to B., on the ground that it was executed in fraud of the creditors of A., and made B. a party to the suit; it was held, there having been no objection taken either by demurrer or answer, on the ground of an improper joinder of several causes of action, that the plaintiff was entitled to contest the validity of the conveyance from A. to B.126 The demurrer must be entirely sustained, or fail to the whole extent to which it is applied.127

§ 287a. Mandamus and injunction.-Although the complaint in an action may be an attempt to improperly join a cause of action. for mandamus and one for injunction, yet a demurrer for misjoinder will not lie, provided the complaint, which is not separated into separate counts or causes of action, but is a continuous statement of facts, states a good cause of action for the injunction and shows no ground for relief by mandamus.128

§ 288. Husband and wife.-There is no misjoinder of actions in an action against husband and wife to foreclose a mortgage executed by husband and wife to secure a note given by the husband alone, where the prayer of the complaint was for judgment against the husband, and a decree against the husband and wife for a sale of premises.129

122 Schoelkopf v. Leonard, 8 Colo. 159, 6 Pac. 209.

123 State v. Edwards, 33 Utah, 243, 93 Pac. 720.

124 Angell v. Hopkins, 79 Cal. 181, 21 Pac. 729.

125 Penter v. Staight, 1 Wash. 365, 25 Pac. 469.

126 Macondray v. Simmons, 1 Cal. 393.

127 Peabody v. Mutual Ins. Co., 20 Barb. 342; People v. Mayor of New York, 17 How. Pr. 57; Wait v. Ferguson, 14 Abb. Pr. 379; Cook v. Chase, 3 Duer, 643.

128 Times Publishing Co. v. Everett, 9 Wash. 518, 43 Am. St. Rep. 865, 37 Pac. 695.

129 Rollins v. Forbes, 10 Cal. 299.