Barnes v. City of Beloit

19 Wis. 93 | Wis. | 1865

By the Court,

Downeb, J.

The complaint does not state facts sufficient to authorize the plaintiffs to bring the suit on behalf of themselves as well as others. Newcomb v. Horton, et al., 18 Wis., 566. If the proceedings set out in the complaint are valid, then there is a lien on each lot separately to the amount of the benefits assessed against it for widening Tight street; if they are not legal, then there may be an apparent cloud to the amount so assessed on each lot. Each plaintiff is interested only in removing this cloud from his own lots, not from the lots belonging respectively to his co-plaintiffs. Eacb and all may be interested in tbe question ; for if one bas a right"'to tbe aid of a court of equity to remove tbe cloud or enjoin tbe assessment as illegal, for tbe same reasons and on tbe same evidence eacb of tbe others might obtain relief. But there is no such common pecuniary interest as authorizes them to unite in one suit as plaintiffs to obtain tbe relief asked. Eacb can sue alone, and tbe others are not necessary parties. This is not an action respecting a common fund, nor to assert a common right, nor to restrain acts injurious to property in which all tbe plaintiffs have a common interest or a common right. But tbe complaint in tbe action sets forth separate causes of action, one in favor of eacb plaintiff, without being separately stated; and if so, several causes of action are improperly united. Tbe counsel for tbe respondents, however, maintains that different causes of action within tbe meaning of secs. 5, ch. 125, R. S., are improperly united only where there are in tbe same complaint causes of action of tbe different classes mentioned in sec. 29 of tbe same chapter; as for instance where tbe complaint contains one count in tort and another on contract; and that where there are several causes of action, to-wit, one in favor of eacb of several plaintiffs, in tbe same complaint, and all of tbe same class, tbe remedy is not by demurrer, but by motion. He cites several cases to this point, but they are all cases where several causes of action in favor of all tbe plaintiffs, affecting all the parties, and which might he united in the same complaint, were not separately stated. But in this ease eacb separate cause of action does not affect all the parties to tbe action, and they could not be united without violating the provisions of sec. 29 aforesaid. In other words, tbe plaintiffs have no common pecuniary interest. The complaint would have been held bad before tbe Code for multifariousness.

The order of tbe circuit is reversed, with costs.