Degress v. Hubbard, No. 2673

No. 2673 | Tex. Comm'n App. | Jul 1, 1881

Opinion.— The demurrers to appellant’s petition sustained by the court presented several objections to the same as amended, the principal ground being that of misjoinder of defendants and causes of action, or, as it is termed in equity pleading, multifariousness.

The appellant joined in his petition a claim for damages against five defendants, growing out of an alleged assault and battery and false, imprisonment, and a claim against one of the five alone for mon'éy had and received. In the case of Clegg v. Varnell, 18 Tex., 304, it was said, “ the rule against multiplicity of suits has peculiar force in our system of procedure. Within reasonable limits it is the cardinal principle as to the joinder of parties and causes of action.”

Defendants, however, should not be put to inconvenience, expense and delay in litigating matters in which they have no interest. See Frost v. Frost, 45 Tex., 341; Story on Equity Pleading, sec. 539. The court, in the case of Clegg v. Varnell, treating of this question, said: 55The substance of the rules on this subject appears to be that each case must be governed by its „own circumstances, and whether it be multifarious or not must be left in a great measure to the sound discretion of the court.” In a case like the one before us it can. be perceived how and in what way inconvenience, injustice and delay might be caused to a portion of the defendants to the suit, as there is no relevancy or connection between an action for damages for tort and an action for money had and received. The court below, in the exercise of a discretion, sustained the demurrer to the petition and dismissed the suit, and in this respect we find no such palpable abuse of that discretion as would authorize a reversal of the judgment.

Aeeirmed.