First Nat. Bank v. D. S. B. Johnson Land Mortg. Co., 17 S.D. 522

First Nat. Bank v. D. S. B. Johnson Land Mortg. Co.

17 S.D. 522 | S.D. | 1903

Corson, J.

This case comes before us on an appeal from an order overruling separate demurrers interposed by the defendants to the plaintiff’s complaint. The demurrers were upon the following grounds: ‘ ‘First. That several causes of action are improperly united therein. Second. That the first cause of action does not state facts sufficient to constitute a cause of action so far as the plaintiff the First National Bank of Charles City is concerned. * * * Third. That the second cause of action does not state .facts sufficient to constitute a cause of action as to either defendant.” The complaint attempts to set out two causes of action, the first of which is substantially as follows: It is alleged, that the plaintiff the First National Bank of Charles City and the defendant.D.- S. B. Johnson Land Mortgage Company are corporations; that the plaintiff A. G. Case is the owner in fee simple and in possession of the,quarter section of land described in the complaint, and was such owner at all times therein mentioned, and that the defendants and each of them claim an estate or interest in and to the said land adversely to the plaintiffs. The plaintiff’s second cause of action is very lengthy, but may be briefly summarized as follows: It is alleged that the plaintiff the First National Bank of Charles City brought an action in the circuit court of Spink county, in which it made the D. S...B. Johnson Land Mortgage Company and certain other parties defendants, and that as the result of that action a decree was entered quieting the title in the said First National Bank to the quarter section of land described in the first cause of action, together, with another quarter, and canceling a certain mortgage alleged to have been executed by one Newell to Samuel McDonald upon the two quarter sections, and that pending said action the *525land mortgage company wrongfully and ^fraudulently caused the saidhnortgage to be assigned to Kate A. Chadwick, defendant mTthis action, and that she, not being a party to the former action/brought to cancel said mortgage and quiet the title to the said' land, now claims title under the said mortgage, and that the'land mortgage/company’; has^fraudulently proceeded to foreclose the said mortgage in the name’of the said Kate A. Chadwick; that after the former action was tried and final judgment and decree entered therein, and before the plaintiff bank had any knowledge "of the1 said fraudulent’"transfer of said mortgage and the recording of ^ its assignment, the plaintiff bank transferred the said premises to its co-plaintiff, A. G. Case, with the’usual covenants of warranty; that said plaintiff the said First National Bank, by reason of the said transfer and by reason of its covenants with its said co-plaintiff, Case, is interested in the result of this action, and in having the said pretended assignment, and also the said' pretended foreclosure proceedings, canceled; that by reason of the said fraudulent action and conduct on the part of the said defendants, plaintiffs have suffered damages in time and money spent in bringing this action and procuring the cancellation of the said pretended assignment of the said mortgage in the sum of $100, and plaintiff’s demand judgment for the cancellation of said pretended'assignment of said real estate mortgage and of the sheriff’s certificate of sale, and that the foreclosure proceedings be cancelled of record, and be set aside as fraudulent and void; that the. said plaintiff’s title be quieted in them; and that the plaintiff’s have judgment for their costs and disbursements, together with such damages as the court may find that the plaintiff’s have suffered by reason of the fraudulent conveyance and actions of the defendants.

*526It is contended by ihe appellants thau the plaintiff the First National Bank of Charles City, is not shown to have any interest in the said quarter section of land the title to which was sought to be quieted by the first cause of action, and could not, therefore, be joined with the plaintiff in the said cause of action. It will be observed from the allegations in the first cause of action ' that the plaintiff Case claimed to be the owner of the quarter section described in that cause of action, and that the defendants, and each of them, claimed an estate or interest in and to the said land adverse to the plaintiff. Section 144 of the Code of Civil Procedure provides: “The plaintiff may unite in the same complaint several causes of action, * * * but the causes of action so united must all belong to one” of the classes specified, and except in actions for the foreclosure of mortgages “must affect all the parties to the action.” And Mr. Pomeroy, in his work on Remedies and Remedial Rights, says: “The causes of action must not only affect all the defendants, but all the plaintiffs as well, the provisions of the Codes applying equally to both parties.” Pom. Rem. & Rem, § 483; Dailey v. Houston, 58 Mo. 361. So far as it appears from the allegations of the first cause of action, the plaintiff bank had no interest in the quarter section therein described. It was not the owner of the property, and it is not alleged that it had any interest therein; hence it does not appear from that cause of action that the bank would be affected in any manner by the action.

It is insisted on the part of the respondents that for the purpose of determining whether or not the bank was interested in the property described in the first cause of action we may look to the second cause of action, but this position of the responcb *527ents is incorrect. Bach cause of action must be complete in itself. One cause of action cannot in any manner be aided by the allegations in any other cause of action. In the theory of the law each cause of action constitutes a separate and independent complaint. Mr. Pomeroy, in his work on Remedies and Remedial Rights, says: “All of the Codes require that the different causes of action should be separately stated; in other words, each must be set forth in a separate and distinct division of the complaint or petition in such a manner that each of these divisions might, if taken alone, be the substance of an independent action. Innfact, the whole proceeding is the combining of several actions into one. At common law these separate divisions of the declaration were termed ‘counts,’ and that word is still used by text writers'and judges, although, with one of two exceptions, it is not authorized by the Codes; it tends to produce confusion and misapprehension, since the common law ‘count’ was substantially a very different thing from the ‘cause of action’ of the new procedure.” Pom. Rem. & Rem. § 442. Bliss, in his work on Code Pleading (section 841), states the rule'as follows: “It (the count) must contain all the facts which constitute the cause of action embraced in it, and its defects cannot be supplied from the other statements.” Chitty, in his work on Pleadings says: “But unless the second count expressly refers to the first, no defect therein will be aided by the preceding count; for though both counts are in the same declaration yet they are for all purposes as distinct as if they were in ' separate declarations, and, consequently, they must independently contain all necessary allegations, or the latter count must expressly refer to the former.” 1 Chitty on Pleadings, p 249, In 4 Bncylopsedia of Pleading and Prac*528tice, 620, the rule is thus stated: “Bach count in a complaint containing more than one cause of action must contain, in and of itself, a full and complete statement of all the facts constituting the cause of action sought to be stated.” And this seems to be the view of courts in code cases. Sinclair v. Fitch 3 E. D. Smith, 675; Pennie v. Hildreth, 81, Cal. 128, 22 Pac. 398; Michigan National Bank v. Green, 33 Iowa, 140; Ludlow v. Ludlow, 109 Ind. 199, 9 N. E. 769. Assuming, Ytherefore, without deciding that the plaintiffs were proper parties in the second cause of action, and thaFa good cause of action was stated therein, this would not show or tend to show that the plaintiffs were properly united in the first cause of action. In Hawarden v. Youghiogheny & L. Coal Co., 111 Wis. 545, 87 N. W. 472, 55 L. R. A. 828, the supreme Yourt] of Wisconsin thus states the rule’governing this-class of cases: “The statute provides that causes of action, in order.to be united in one complaint, ‘must affect all the parties to the action.’. Rev. St. 1898, § 2647. It is' clear’that this limitation would be violated if the two Causes of action in this complaint are allowed to be united in one complaint. The first fcause’of action is á straight action at law for damages’to the plaintiff alone. No one else has any interest in[the judgment in that action, whatever it be. But the*second cause of action is a cause of action in favor mf a large number of persons constituting a class'represented by the> plaintiff. The doctrine is frequently stated that the several causes of action for or against<a person must affect him in the same capacity in order to make them capable of being joined. * * * These considerations are .conclusive to the effect that the general demurrer to the whole complaint on the ground of improper joinder should have been *529sustained.” Gray v. Rothschild, 112 N. Y. 668, 19 N. E. 847; Foreman v. Boyle, 88 Cal. 290, 26 Pac. 94; Barham v. Hostetter, 67 Cal. 274, 7 Pac. 689; Winslow v. Jenness, 64 Mich. 84, 30 N. W. 905. It is quite clear, therefore, that the demurrer should have been sustained on the first two grounds'specified in the demurrer, namely that the causes oí action were improperly united, and that the first cause of action did not state facts sufficient to constitute a cause of action so far as the plaintiff the First National Bank is concerned. In taking this view of the case, we do not deem it necessary to discuss or consider the third ground of demurrer, namely that the second cause of action does not state facts sufficient to constitute a cause of action as to either defendant.

The order of the circuit court therefore, overruling the demurrers, is reversed.