Hackett v. Carter

38 Wis. 394 | Wis. | 1875

Cole, J.

The complaint states, in different counts, two distinct causes of action: one relating to the lands in Jackson county, and the other relating to the lands in Eau Claire county. One ground of objectibn taken in the demurrer is, that these actions are triable in different counties, and therefore are improperly united. It appears to us that the objection is well taken.

That these causes of action are local and properly triable in the county where the different tracts are situated, does not admit of doubt, in view of the plain language of sec. 1, ch. 123, B. S. That section provides that actions for the recovery of real property, or for the determination of a right or interest therein, shall be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial. This provision clearly determines the county in which these causes of action must be tried. But the question is, Can the defendant take advantage of this improper union of these causes of action, on demurrer? We think he can. Sec. 31, ch. 125, B. S., prescribes what causes of action may be united in the complaint. And sec. 32 declares that the causes of action so united must not only belong to one of tbe specified classes, but must affect all tbe parties to the action, and not require different places of trial. The complaint before us does not meet these conditions. The causes of action do not arise out of the same transaction, but distinct and independent transactions. The relief asked would require the court, by its judgment, to cancel the deed executed by the plaintiff Orpha H. Pfachett to the defendant, of the lands in Jackson county, and order a re-conveyance of those lands by him to her; and alsd to cancel the assignment of the, Getmann contract of the lands in Eau Claire county, and adjudge a conveyance of those lands to her. The circuit court for Eau Claire county would therefore be called upon to act directly upon real estate within that county, and also upon real estate in another county — -no fact being stated to give it the right to try the last cause of action. There is no authority in the statute for uniting in the complaint these distinct causes of action triable in different counties; and on that ground the complaint is demurrable. Subd. 5, sec. 5, ch. 125. Whether it would or would not be competent for the court, under the last clause of sec. 88, to order the action to be divided,-is not a question now before us. But it is clear the circuit court of Eau Claire county has no right to try the first cause of action, if properly objected to; nor do we see that the plaintiffs can derive any support, upon the facts stated, from the doctrine of Pereles v. Albert, 12 Wis., 666.

A very novel practice seems to have been adopted in this case. There were two demurrers filed to the original complaint ; the first, on the ground that the complaint failed to state a cause of actipn; the second, on the ground that several causes of action were improperly united. It is insisted that the defendant, by demurring on the first ground, waived the objection that two causes of action were improperly united.

The practice of filing two demurrers to the same pleading, without leave of court, is, we suppose, irregular and unauthorized under any system of procedure. In this case no objection was taken to it in any way, but the parties saw fit to let both demurrers remain upon the record, and submitted the questions raised by them for the decision of the court. Under these circumstances we do not see but they must be treated as amounting practically to one demurrer to the complaint; and both grounds of objection to it must be regarded as being before the court. As a matter of fact, they seem to have been so considered by that court.

It is further insisted that the question whether two causes of action are improperly united, is res adjudícala in the cause. We have already remarked that the objection of misjoinder was taken to the original complaint, and was considered by the court, and overruled. No appeal having been taken from that order, it is claimed that the question is res adjudícala. We should certainly be inclined to so hold, were it not for the provision of the statute (sec. 6, ch. 139, R. S.) which enacts that this court, on appeal from the judgment, may review any intermediate order involving the merits and necessarily affecting such judgment. So it would be the duty of this court, on an appeal from the judgment, to examine the correctness of the order overruling that demurrer. And, should we affirm this order on the ground that the question was res adjudícala, this strange anomaly might result. On appeal from the judgment, we should hold that the defendant was not concluded by the decision of the court on the question of misjoinder, but might assail the decision of the court upon that point; while, on this appeal from the order on the last demurrer, we should decide that he was concluded. To avoid so palpable an absurdity we must hold that the doctrine of res adjudícala has no application to the decision of the court below on the former demurrer.

It was cMmed that the doctrine had no application for another reason, namely, that an amended complaint was filed after the first demurrer was overruled, which gave the defendant the right to take any objection he chose by demurrer to that complaint. It is unnecessary to consider whether this position is sound or not, as we place our decision upon tbe ground stated and upon considerations arising wholly upon tbe statute regulating appeals to this court.

By the Court. — The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.