Otis v. Mechanics' Bank

35 Mo. 128

• Court: Supreme Court of Missouri
• Decided: March 15, 1864
• Status: Published

Opinion

Judge Bay

delivered the opinion of the court.

The Practice Act (§2, art. 6, R. C. 1855, p. 1228) reduces all causes of action to seven classes, and permits a plaintiff to unite in his petition as many causes belonging to the same class as he has, but requires the causes so to be united to be separately stated, with the relief sought for each cause of action, in such manner as that “ they may be intelligibly distinguished.” A petition containing two or more causes of action is therefore bad — 1. Where the causes united belong to different classes; and, 2. Where, although the causes belong to the same class, they are not separately stated. The petition in this case is subject to the latter objection; it unites many causes of action (each promissory note being a several cause), all arising out of contract, in one count; not basing, as the law contemplates, a separate count on each several promissory note on which a recovery is sought. (Mooney v. Kennett, 19 Mo. 551; Boyce v. Brown, 7 Barb. Sup. Ct. N.Y. 80.)

The petition being defective, the inquiry remains whether the fault is one which is the subject of demurrer. This is a question that has occupied the attention of the courts of New York no little in the construction of their code of practice, from which ours was borrowed; and although the course of decision in those courts has been by no means uniform, yet it seems at least to have become the settled doctrine there, that the fifth ground enumerated in the catalogue of causes for which a demurrer will lie, viz., “ that several causes have been improperly united” (§6, art. YI.), has application to the union of incongruous causes of action, and not to the intermingling of causes of the same class in the same count, as in the case under consideration. (Robinson v. Judd, 9 How. Pr., N. Y., 378; Peckham v. Smith, id. 436; Moore v. Smith, 10 id. 361; Forsyth v. Edmiston, 11 id. 408; Waller v. Raskan, 12 id. 28; Dorman v. Kellam, 4 Ab. Pr., N. Y., 202; Phillips v. Gorham, 17 N. Y. 274.)

In the result thus arrived at we fully concur. The remedy for the defect in the petition is by motion, to require the party to elect one and strike out the remaining causes of action, thus improperly joined in one count. (Dorman v. Kellam, supra; Martin v. Kanouse, 11 How. Pr. 567.)

We are of opinion, therefore, that the Common Pleas committed error in sustaining the demurrer, and for this reason its judgment is reversed and the cause remanded. The plaintiff will be permitted to amend but in default of amending, the defendant will have leave to withdraw his demurrer and move for the reformation of the petition.

The other judges concur.