115 N.W. 751 | Minn. | 1908
1 The preliminary question is whether the demurrer was in the proper form and was the proper means to raise this question. It directed plaintiff's attention to the precise objection made, and "gave plaintiffs a better writ," because it distinctly specified the ground of objection, viz., that all of the parties were necessary parties, and because *20
it named the missing parties specifically and correctly. In other words, the demurrer especially pointed out what the defect was and who were the necessary parties plaintiff. Because of their interest under the contracts it was sufficient in form. Jaeger v. Sunde,
2. Concerning the nature of the demurrer under the practice in this state, Gilfillan, C. J., said in Porter v. Fletcher,
It is to be noted in this connection that in this state no demurrer *21
lies to the relief prayed by a complaint, if the facts alleged therein show that plaintiff is entitled to any substantial relief. Kenaston v. Lorig,
The question whether the demurrer addressed to the improper joinder of causes of action would have here availed is not raised by the record.
3. The question, then, arises whether the parties named were necessary and proper parties to the equitable proceeding. In Shields v. Barrow, 17 How. (U. S.) 130, 139,
The rights of the Disbrow associates as owners of legal interests under the contracts attached to the complaint, to whom promises were made, and from whom consideration passed, were shown to have been so intimately related with those of the plaintiff as not to be capable of being adequately separated from his rights. A detailed statement of the contract provisions necessitating this conclusion would merely incumber the record and serve no useful purpose. It is evident that they were "all in together."
4. The final and essential controversy involves certain assumptions for present purposes only, which, we understand, are agreed upon, viz., that, apart from the question as to the defect of parties, the complaint stated good causes of action in tort and in equity and was not demurrable for want of facts (see 8 Current Law, 1386) and that the parties to the cause of action in tort are proper and sufficient. The ultimate question on these assumptions is whether the fact that the parties named in the demurrer were not necessary parties to the action in tort was good reason why the demurrer should not be sustained because they were necessary and missing parties to the equitable proceeding; that-is to say, in one aspect of this proceeding, in which if is viewed as an action in tort, plaintiff is entitled to some relief when suing alone, and in another aspect, in which equitable relief is sought the trial court held that plaintiff was entitled to relief only by joining other parties. We are of opinion that under these circumstances the trial court properly sustained the demurrer.
The merit of common-law, as distinguished from code, pleading was that it tended directly to produce single and definite issues. It wasted no time in so doing. The party complaining must originally have proceeded either in law or in equity — if in law, in contract or on the tort, and by means of a definitely recognized form; and if in equity, under a recognized head of equitable jurisprudence. The present complaint it would have promptly rejected or pruned. It will sometimes happen that when, under the code, one of these "omnibus" or "blunder-buss" complaints is sought to be utilized, substantially the same result is finally reached as at common law. It has proved impossible *23
to make the law of remedies independent of the law of substantive rights Each had its origin in history. Each has incorporated that historical development. The alteration in the law of remedies by the code must necessarily have a limited effect, unless there was a corresponding change in the law of substantive rights. The code did not Purport to alter the law substantive. In the absence of previous correction of such a pleading, there comes, moreover, a time under the practice in this state when the case must go on the court or the jury calendar. It cannot go on both at the same time. This necessitates a definite theory on plaintiff's part. If the case goes on the jury calendar, plaintiff may have a cause of action in tort or in contract. If the case goes on the court calendar, it is controlled by ordinary principles of equitable jurisprudence, in aid of which issues may, in proper cases, be framed and submitted to a jury, and tried in law. This practice is largely for convenience. It may happen that an equity case may get on the jury calendar, and that the court, who is at once a chancellor and a judge at law, may none the less, for example, reform a contract and submit damages for its breach as reformed to the jury. But in no tenable view is the primary distinction between legal and equitable causes of action and kinds of relief abolished, or rules of inconsistency destroyed. Plaintiff is, of course, bound by his own election. When his pleading is confused or inconsistent, and a motion has been made to place it on a particular calendar, he is equally bound by the proper construction of the trial court as to what cause or causes of action his pleading must be regarded as having set forth. Todd v. Bettingen,
This is entirely consistent with the more liberal view of code practice, viz.: "When the plaintiff is clothed with primary rights, both legal and equitable, growing out of the same cause of action on the same transaction and is entitled to an equitable remedy, and also to a further legal remedy, based upon the supposition that the equitable relief is granted, and he sets forth in his complaint or petition the facts which support each class of rights, and which show that he is entitled to each kind of remedy, and demands a judgment awarding both species of relief, the action will be sustained to its full extent in the form thus adopted. He may, on the trial, prove all the facts averred, and the court will, in its judgment, formally grant both the *24
equitable and the legal relief." Pomeroy, Rem. Rem. Rights, p. 96, § 78. See Guernsey v. American Ins. Co.,
When this case in due course will come to be placed upon the calendar, it must go on the jury cases or court cases. If plaintiff should then elect to put it on the jury cases — that is, to sue in tort — no prejudice would result from an overruling of the demurrer. If, however, he should elect to put it on the court calendar — that is, to proceed in equity — then, if no demurrer had been interposed and sustained, defendant would be unable to complain of the defect of parties plaintiff, for, if a defect of parties plaintiff or defendant appears upon the face of the complaint, the objection addressed to that point must be taken by demurrer, or it is waived. Section 4129, R. L. 1905. And see Mason v. St. Paul F. M. Ins. Co.,
On argument in this court we understood counsel for plaintiff to have expressed a willingness to elect to sue on a tort only. The place for making that election is in the trial court, and the time before appeal was taken, or after the remittitur herein has been handed down
*76Affirmed.