46 Colo. 324 | Colo. | 1909
delivered the opinion of the court:
This action, to enforce a mechanics’ lien upon .a mine, is against Isaac Hall, the owner, and S. D. Hanna, who, it is alleged, had a contract with the owner for its purchase.
The complaint unquestionably contains two well-pleaded, separate and distinct causes of action blended in one statement. It first alleges that plaintiff and his assignors, under a contract with Hanna, furnished materials and performed labor in developing the mine, for which a lien thereon is asked, the
It thus clearly appears that the complaint contains, in the one statement, two distinct causes of action against defendant Hall, the owner; the first being a liability upon an express contract; the second, a noncontract statutory liability, in that the owner disregarded the provisions of sec. 5 of our mechanics’ lien act (Sess. Laws 1899, p. 267), which provides that the property of the owner, who has not made a contract for such improvements, is subjected to the lien if he acquires knowledge thereof and does not within five days thereafter give and post a notice that his. interests shall not be subject to a lien for the same.
The defendant owner, Hall, for himself alone, filed a motion to the complaint, which, among other things, asked that these two causes of action be separately stated. This motion was overruled" and Hall, by special demurrer, raised the same questions, which was also overruled and he then answered. Upon the issues of fact thus joined, defendant Hanna suffering default, the hearing resulted in findings for plaintiff, and a decree was rendered thereon awarding a money judgment against Hanna and establishing the lien against the interests of both
There can he no donbt that the motion is well taken. Subdivision 3 of sec. 70 of our Civil Code provides that where two or more distinct causes of action are united in the same complaint, ‘ ‘ it shall he necessary to state separately in the complaint the different causes for which the action is brought.” This .is an imperative requirement. When this provision is violated the court has no discretion in the matter, hut must, when a motion therefor is made in apt time, order them to he separately stated; and, if plaintiff fails to comply with the order, his complaint should he stricken from the files. In some states it has been held that a special demurrer is an appropriate remedy; but the rule which prevails in this jurisdiction, requires the objection to he taken by motion.—Code sec. 60; Cramer v. Oppenstein, 16 Colo. 504; Orman et al. v. Mannix, 17 Colo. 564; Bliss on Code Pleading (3d ed.), §§ 119, 120; Pomeroy’s Remedies and Remedial Rights, §§ 447, 450, 575; 14 Enc. Pl. & Pr., p. 73 et seq., p. 79; 6th Enc. Pl. & Pr., pp. 246, 272 et seq.
From the foregoing it will he seen that the question for decision here is not whether the complaint is ambiguous, or uncertain', or whether two causes of action have been properly united. The latter question, under Code sec. 50, must he raised by special demurrer, and is waived by answer. The former is also raised by demurrer, and, it seems, a motion, under secs. 60 and 75 is a concurrent remedy.—Orman v. Mannix, supra; 6 Enc. Pl. & Pr., p. 273. It has also been held that a motion to require á complaint to he made more specific or definite is addressed to the sound legal discretion of the trial court and its ruling thereon will not he reversed unless the discretion has been abused.—6th Enc. Pl. &
Under the mandatory requirement of sec. 70, subdivision 3 of our Code, that different causes of action which are set up in the same complaint must be separately stated therein, though some authorities do not regard the vice as serious,—Possell v. Smith, 39 Colo. 127—it would seem that, when it has once been ascertained that two or more causes of action are thus pleaded, and certainly where, as here, they are inconsistent, the court has no discretion when the objection is made in apt time; but must require them to be separately stated. If, however, it is a discretionary matter, it is clear that, when it clearly appears that two or more such causes of action as we have here are intermingled in one count of the complaint, to refuse the seasonable request of the defendant to have them separately stated works to defendant’s prejudice and is an abuse of discretion for which a reversal will lie. The reasons for such a holding are obvious. The defendant is entitled to have different causes of action separately stated, not only that he may determine for himself whether or not they are such as may be properly united in the same complaint, but also whether, when separately stated, any of them is subject to a motion or to a demurrer upon any other ground. "Whatever the Code provisions may be as to what causes of action may be united in one complaint, it is uniformly held that they must be separately stated and in some states the statements must be numbered. The latter requirement is not in our Code.—Bliss on Code Pleading (3d ed.), §§ 119, 120.
In the case before us, as already said, there is not the slightest doubt that two distinct causes of
Other questions, some of them important and serious, have been discussed by counsel; but we do
Reversed cmd remcmded.