This аction was instituted on May 4, 1907, by Henry G. Bowman and Margaret Bowman, his wife, against S. A. Wohlke and J. P. Faivre, to recover of defendants ten thousand dollars’ damages alleged to have been suffered by said plaintiffs by reason of a “conspiracy” on the part of defendants and acts done by them in pursuance of such conspiracy, together with fifteen thousand dollars exemplary or punitive damages. The action was tried by the court, without a jury, in May, 1911. The findings of the trial court were in favor of plaintiffs, and judgment was given for them against defendants for four hundred dollars actual damages, and three thousand dollars exemplary damages. This is an appeal by defendants from the judgment, and from an оrder denying their motion for a new trial. Defendant John P. Faivre having died, the executors of his will have been substituted for him as parties defendant.
In their original complaint, the plaintiffs, after alleging that defendants conspired to do the acts complained of for the purpose of destroying the business of plaintiffs and of holding them up to contempt and obloquy, and exposing them to public hatred, contempt, and ridicule, alleged a series of acts on *123 their part in pursuance of said conspiracy, claimed to have resulted to their damage in the lump sum of ten thousand dollars. These were, in brief: 1. A malicious prosecution and arrest of Margaret Bowman on a charge of disturbing the peace, on September 21, 1906, involving her imprisonment for some three hours; 2. Slander by both defendants of both plaintiffs in circulating reports that plaintiffs were selling spirituous and malt liquors without a license; 3. Slander of both plantiffs in charging that they had endeavored to defraud an insurance company by representing that they had lost сertain property by the fire of April, 1906, which they had in fact saved from the fire; and, 4. Trespass upon the real property of plaintiffs, injury to, and destruction of personal property thereon, and the maintenance of a nuisance on such real property in the erection of a high board fence thereon to shut out the light frоm plaintiffs ’ store, and to interfere with the sale of merchandise therein. By their amended and supplemental complaint filed May 27, 1911, filed by permission of the court after the ease had been submitted on briefs to be filed, “so that the allegata and probata would correspond,’’ various other acts in addition to the acts alleged in the original complaint were аlleged to have been committed in pursuance of said conspiracy, among which were the following: A malicious prosecution and arrest of both plaintiffs on November 21, 1906, involving their confinement in jail for over three hours before they were released on bail; interference with plaintiff Margaret Bowman in the erection of а building on her land; the obstruction of a gutter in the street in such a manner as to divert certain rain water into plaintiffs’ store, to the injury of certain groceries and a stove contained therein; injury to the building on Mrs. Bowman’s land. The court found in favor of the plaintiffs as to both of the alleged malicious prosecutions and arrests, the maintenance of the alleged nuisance, injuries to the building on Mrs. Bowman’s land, obstruction of the gutter resulting in the diversion of water into plaintiffs’ store, and consequent injury in a small amount to certain personal property therein contained, certain slanders of plaintiffs, and some other matters. There was no attempt by the court to apportion the exemplary damages of three thousand dollars awarded, the same being awarded on account *124 of all the acts found, including some that were in no way actionable.
From what we have said it is apparent that in both the original and amended complaints were united claims for injuries to character, to person, and to property. The same were not “separately stated.’’ Of course, in view of our statutory provisions, causes of action for injuries to property may not be united in one action with causes of action for injuries to the person or character. (See Code Civ. Proc., sec. 427.) And where causes of action may be united they must be separately stated. (Id.) The theory of counsel for plaintiffs is that by rеason of the claim that all the acts were done in pursuance of a conspiracy, we have but a single cause of action stated in the complaint, a cause of action for damages for “conspiracy,” and that any variety of wrongful acts, whether ordinarily capable of being united in a single action or not, mаy be so united if done in pursuance of a conspiracy. We are satisfied that this theory is irreconcilable with well settled rules of law, and cannot be upheld. As early as 1864 this court said in
Herron
v.
Hughes, 25
Cal. 560: “A simple conspiracy, however atrocious, unless it results in actual damage to the party, never was the subject of a civil action; and though such сonspiracy is charged, the averment is immaterial and need not be proved. Where two or more are sued for a wrong done, it may be necessary to prove previous combination in order to secure a joint recovery, but it is never necessary to allege it, and if alleged it is not to be considered as of the gist of the аction. That lies in the wrongful and damaging act done.” In
Davitt
v.
Bakers’ Union,
*127 It follows from what we have said that various errors were committed in the disposition of this case in the trial court. In fact, this is practically conceded by learned counsel for respondents to be the situation, if his theory that the complaint stated only a single cause of action be not correct.
When the amended and supplemental complaint alleging the arrest and imprisonment of November 21, 1906, was filed on May 27, 1911, after the evidence had been concluded, and the case ordered to be submitted on briefs to be filed, defendants objected thereto and moved that the same be stricken from the files as “no showing was made or notice given to file such a pleading. ’ ’ Without waiving such objection, defendants interposed a demurrer to said complaint. Among the grounds of demurrer specified therein were the following, in substance: 1. That causes of action for a forcible entry of defendants on plaintiffs’ premises, injury to plaintiffs’ grocery business, and malicious prosecution of the plaintiffs, were united and were not separately stated; 2. That said amended complaint attempted to set forth several causes of action, and that the same were not separately stated, as required by law; 3. That the alleged cause of action for malicious prosеcution which was alleged to have occurred in November, 1906, was barred by sections 338, 339, and 340 of the Code of Civil Procedure. This demurrer was overruled by the trial court. Defendants filed an answer on June 22, 1911, which was within the time allowed by the court, but on June 26, 1911, the findings of the trial judge, which had been signed by him on June 22, 1911, while out of this city and county, were filed in the office of thе clerk, without defendants ever being given the opportunity to have a trial of the issues made as to the new causes of action set up for the first time in the amended and supplemental complaint.
It may be that the demurrer was not so worded as to properly present the objection that certain causes of action wеre improperly united. It did, however, present in proper form the objection that the specified causes of action united in the complaint were not separately stated, which is now a ground of demurrer in this state (Code Civ. Proc., sec. 430, subd. 5), and the demurrer should have been sustained on this ground. Proceeding on the theory that but a single cаuse of action was being stated, the complaint in all but two or three instances,
*128
where certain items of special injury were alleged, failed to set forth the amount of damages claimed on account of each cause of action. So much, at least, the defendants were entitled to know. (See
Eisele
v.
Oddie,
The claim made by the demurrer that the cause of action for malicious prosecution and arrest of plaintiffs in November, 1906, was barred by certain sections of our statute of limitations was well based. It being settled that the statement in the amended complaint in regard to this was the statement of a new cause of action, on account of which a recovery was sought, this is obvious. As we have seen, this amended complaint, in which for the first time any allegation was made as to this transaction, was not filed until May 27,1911, which was more than four years after the cause of action on account therеof accrued. As to this new and distinct cause of action, the action was not commenced until the filing of the amended complaint. (See
Anderson
v.
Mayers,
Obviously, the procedure in regard to the amended and supplemental complaint was objectionable. Filed as it was after the evidеnce was closed, under permission simply for the filing
*129
of amendments that would make the pleadings conform to the evidence, it contained statements of new and distinct causes of action not contained in the original complaint, which, of course, was not permissible. The objection made thereto by defendants was good. The еrror was not waived by the filing of the answer. In
Witkowski
v.
Hern,
In view of our conclusion upon the matters already discussed, we do not deem it necessary to notice any of the other points made for reversal.
The judgment and order denying a new trial áre reversed.
Sloss, J., and Shaw, J., concurred.
Hearing in Bank denied.