130

§ 289. Injuries to person and property.-Injuries to person, resulting from injuries to property, if joined with the latter, is not a misjoinder of causes of action in New York.1 But the practice differs in California, where such would be a misjoinder and would be demurrable. Especially is this the case unless it arises out of the same transaction.131 Damages for a personal tort cannot be united with claim for equitable relief.132 So a claim for possession of real property and damages for its detention cannot be united with a claim for consequential damages. 133 So a claim for damages resulting from a trespass quare clausum fregit cannot be joined with ejectment. So where several matters are united against one defendant, perfectly distinct and unconnected, or where relief is demanded against several defendants of matters of a distinct and independent nature.134

§ 290. Joint demurrer.-If the complaint state a cause of action against one or some of several defendants, a joint demurrer cannot be sustained.135 But where the complaint disclosed a separate cause of action against each defendant, a joint demurrer for misjoinder was sustained.136

§ 291. Misjoinder - Objections when taken. Objections to the misjoinder of causes of action should be taken by demurrer or answer, or they are deemed waived, 137 Misjoinder of actions cannot be taken advantage of on general demurrer.138 A misjoinder of causes of action in a complaint cannot be taken advantage of, unless especially assigned by a demurrer.139 Objections to a complaint which are grounds of special demurrer are waived where the demurrer is general and no special grounds are specified therein.140 Where a plaintiff brought eleven qui tam

130 Grogan v. Lindeman, 1 Code Rep. (N. S.) 287.

131 McCarty v. Fremont, 23 Cal. 197. 132 Mayo v. Madden, 4 Cal. 27. 133 Bowles v. Sacramento Turnpike Co., 5 Cal. 224.

134 Wilson v. Castro, 31 Cal. 420.

135 People v. Mayor of New York, 28 Barb. 240; Eldridge v. Bell, 12 How. Pr. 549; Phillips v. Hagadon, 12 How. Pr. 17; Woodbury v. Sackrider, 2 Abb. Pr. 402; Asevado v. Orr, 100 Cal. 293, 34 Pac. 777; Rogers v. Schulenburg, 111 Cal. 281, 43 Pac.

899.

136 Hess v. Buffalo etc. R. R. Co., 29 Barb. 391.

137 Jacks v. Cooke, 6 Cal. 164; Marius v. Bicknell, 10 Cal. 217; Cal. Code Civ. Proc., § 434; Jones v. Hughes, 16 Wis. 683; Barlow v. Leavitt, 12 Cush. 483; Youngs v. Seely, 12 How. Pr. 395; White v. Delschneider, 1 Or. 254.

138 Ruhling v. Hackett, 1 Nev. 360. 139 Haverstick v. Trudel, 51 Cal. 431.

140 Daggett v. Gray, 110 Cal. 169, 42 Pac. 568.

141

actions for penalties against the same defendant, who demurred especially to each declaration, and the plaintiff joined in demurrer. a motion that one demurrer be argued, and that proceedings in the other cases be stayed to abide the event of the one argued, was denied. A party bringing a multiplicity of suits must take the responsibility of meeting them in the usual way. If two causes of action have been improperly joined without properly stating them, the objection must be taken by demurrer, or it is considered waived.142 Where distinct causes of action, upon a charge of slander, are not separately stated, or not stated with sufficient certainty, these defects are waived by a general demurrer.1 143 Where there is a misjoinder of causes of action, any defendant may demur; but where there is a joinder of improper parties as defendants, the defendant or defendants improperly joined alone can demur.144 Where the parties joined as plaintiffs are all interested in the principal question raised in the bill, and the issues tendered are simple, and a multiplicity of suits may be avoided, a demurrer for multifariousness will not be sustained.145

§ 292. Penalties.-The plaintiff cannot unite in his complaint two or more causes of action for penalties incurred by a tollgatherer for demanding and receiving too much toll, even if they are separately stated.146

§ 293. Recognizance.-Suit was brought on a recognizance given before a justice for the appearance of defendant S. to answer a criminal charge. The complaint, after setting out the cause of action on the recognizance, avers that S., to secure his sureties, executed a deed of trust to T. of certain warrants and money. This deed provides that in case the recognizance be forfeited and the sureties become liable thereon, the trustee is to apply the property to the payment, so far as it will go, of the recognizance. The complaint asks to have this property so applied. It was held that a demurrer for misjoinder of causes of action lies; that the trust-deed has nothing to do with the liability of the sureties. 147

§ 294. Sheriff, action against.-Where in an action against a sheriff the plaintiff's declaration contained one count in case

141 Ferrett v. Atwill, 1 Blatchf. 151, Fed. Cas. No. 4747.

142 Fuhn v. Weber, 38 Cal. 636. 143 Clugston v. Garretson, 103 Cal. 441, 37 Pac. 469.

144 Ashby v. Winston, 26 Mo. 210. 145 People v. Morrill, 26 Cal. 360; Garner v. Wright, 28 How. Pr. 92. 146 Brown v. Rice, 51 Cal. 489. 147 People v. Skidmore, 17 Cal. 260.

against him as sheriff, for so negligently executing the writ as to cause plaintiff to lose his debt, and another in trover and conversion, against him individually for the value of the goods, such joinder is not error, for they are both actions on the case, the plea and judgment being the same in each; and the demurrer of the defendant to the declaration, on the ground of misjoinder, was properly overruled. 148 But where a complaint against a sheriff and his official bondsmen alleges only a cause of action against him as a trespasser, and against his sureties as signers of the bond, and not otherwise, the complaint is demurrable.149

§ 295. Trespass.-In an action for trespass, where the value of the property and damages were claimed, it was held that demurrer would not lie for misjoinder of actions.150

§ 296. Insufficient facts. Where the action was premature, defendant may demur for insufficient facts.151 The court will not presume, in support of the demurrer, that the debt was not due when action was commenced.152 Greater latitude of presumption may be indulged to sustain a complaint when the objection that it does not state a cause of action is taken for the first time at the trial, after an issue of fact has been taken upon it by answer, than when the same objection is taken by demurrer.153 In an action on a bond dated May 10, 1853, conditioned for the payment of a sum "in two years from the first day of April last, with annual interest," a demurrer, on the ground that no cause of action was stated, was tried in June, 1854. It was held that as interest was due before the time of trial, the plaintiff was entitled to judgment upon the demurrer. A demurrer is not the mode under the New York code, of raising the objection that the cause of action had not accrued when the action was commenced.154

§ 297. The same-Attachment.-A writ contained a command to attach the property of the defendant, and for want thereof to take the body; quare, whether demurrer is a proper mode of

148 Patterson v. Anderson, 40 Pa. St. 359, 80 Am. Dec. 579.

149 Ghirardelli v Bourland, 32 Cal. 585.

150 Tendersen v. Marshall, 3 Cal. 440. See Dunton v. Niles, 95 Cal. 494, 30 Pac. 762.

151 Harvey v. Chilton, 11 Cal. 114;

Hicks v. Branton, 21 Ark. 186. See Selz v. Tucker, 10 Utah, 132, 37 Pac. 249.

152 Maynard v. Talcott, 11 Barb.

569.

153 Johnson v. Burnside, 3 S. Dak. 230, 52 N. W. 1057.

154 Smith v. Holmes, 19 N. Y. 271.

155

taking advantage of the error.1 Where the defendant, as sheriff, collects money on an attachment more than sufficient to satisfy the attaching creditor, and after the expiration of his term of office another attaching creditor attaches the surplus and seeks to make the ex-sheriff liable therefor on his official bond, it was held that the demurrer to the complaint was properly sustained, as there is no relation between the defendant and plaintiff to render the defendant officially liable.150

§ 298. Bill of exchange.-It seems that in an action against the drawer and acceptor of a bill the complaint cannot be held bad on a joint demurrer by both defendants, put upon the ground that it does not state facts sufficient to constitute a cause of action, if it states a cause of action against either defendant." 157 An omission to aver delivery in suit on a bond must be taken advantage. of on demurrer. 158

§ 299. Cloud on title.-The objection that the complaint does. not present a case for the exercise of the court to remove a cloud on title may be demurred to, under this cause of demurrer."

159

§ 300. Date illegal.-Where the day of making the contract is immaterial, that the day laid in the declaration would be illegal is not a ground of demurrer.10

161

160

§ 301. Insufficient facts. It is not good ground for demurrer that an amended petition departs from the cause of action set out in the original petition.' Both at common law and under the code a departure in pleading can only be taken advantage of before trial by demurrer or otherwise.162

§ 302. The same-Defective complaint.-If a complaint, though defective, states facts sufficient to constitute a cause of action, the

objection to it should be taken by special demurrer,165 as the want of profert of letters of administration in New York.166 The complaint must be construed most strongly against the plaintiff.167 So for a duplicity in the allegations of the complaint.168 A demurrer for duplicity must point it out specifically.169 In Alabama, a demurrer will not lie for this ground.170 Nor will it lie for a variance between judgment and execution, in an action for an escape.171 In New York, a demurrer on the ground of want of facts can only be sustained where the complaint presents defects. so substantial in their nature, and so fatal in their character, as to authorize the court to say that, taking all the facts to be admitted, they furnish no cause of action whatever.172 For a substantial and radical defect in the complaint, the proper ground for demurrer is that the complaint does not state facts sufficient to constitute a cause of action. 173 Under section 60 of the Colorado Civil Code the objection that a complaint does not state facts sufficient to constitute a cause of action may be raised by demurrer or motion at any stage of the proceedings.174

§ 303. Defect of parties.-A demurrer to a complaint on the ground that it does not state facts sufficient to constitute a cause of action does not raise the question of a defect of parties defendant.175 When it appears upon the face of the complaint that the presence of other parties is necessary to a complete determination of the controversy, a demurrer will lie for a defect of parties plaintiff or defendant.176 In a Wisconsin case the lower court having sustained such a demurrer, pro forma, with a view to a more speedy decision by the supreme court of the question involved, and the question of a defect of parties having been discussed by counsel

165 Greenfield v. Steamer Gunnell, 6 Cal. 67; Lafleur v. Douglass, 1 Wash. T. 185; Union Ice Co. v. Doyle, Cal. App. 284, 92 Pac. 112; Warner v. Warner, 6 Cal. App. 361, 92 Pac. 191. 166 Allison v. Wilkin, 1 Wend. 153. 187 Fishburn v. Londershausen, 50 Or. 363, 92 Pac. 1060, 14 L. R. A. (N. S.) 1234.

168 Bradner v. Demick, 20 Johns. 404; Winterson v. Eighth Ave. R. R. Co., 2 Hilt. 389; Wolfe v. Luyster, 1 Hall, 146 (161).

169 Currie v. Henry, 2 Johns. 433. See, also, Gooding v. McAlister, 9 How. Pr. 123.

46.

170 Wynne v. Whisenant, 37 Ala.

171 Dakin v. Hudson, 6 Cow. 221.

172 Richards v. Edick, 17 Barb. 260; Graham v. Camman, 5 Duer, 697; De Witt v. Swift, 3 How. Pr. 280.

173 White v. Brown, 14 How. Pr. 282; Haire v. Baker, 5 N. Y. 359; Spear v. Downing, 12 Abb. Pr. 437, S. C., 34 Barb. 523.

174 Marriott v. Clise, 12 Colo. 561, 21 Pac. 909.