Harris v. Avery

5 Kan. 146 | Kan. | 1869

By the Court,

Valentine J.

This action was brought in the court below by Avery,, as plaintiff. The petition states two causes of action— false imprisonment and slander — and alleges that both arose out of the same transaction. Harris demurred to this petition, on the ground “that it appears on the face of the petition, that several causes of action are improperly joined.” The district court overruled the demurrer, and this ruling is assigned as error.

The petition shows that the two causes of action are founded upon the following facts. Harris met Avery in the city of Fort Scott, and in the presence of several other persons called Avery a thief; said he had a stolen horse; took the horse from Avery, and kept the horse four or five days; arrested Avery and confined him in the county jail with felons four or five days.

"We think these facts as detailed in the petition constitute only one transaction, [Brewer v. Temple, 15 Howard Pr. R., 286;] and whether they constitute more than one cause of action, under our code practice, may be questionable. Under the authority we have referred to they would not. But as we have not been asked to decide the latter question, we will pass it over and treat the case as though the fqcts stated constitute two causes of action.

Section 89 of the code [Comp. Laws 138,] provides “that the plaintiff may unite several causes of action in the same petition, whether they be such as have hertofore been denominated legal or equitable, or both, when they are included in either one of the following classes: First, the same transaction' of transactions connected with the same subject of action.”

This differs in many respects from the common law rule. At common law “where the same form of action may be adopted for several-distinct injuries, the plaintiff may, in general, proceed for all in one action, though the several rights effected were derived from different titles,” [1 Chitty’s Pl., 201; Tidd’s Pr., 11,] and different forms of action may be united “where the same plea may be pleaded and the same judgment given on all the counts of the declaration, or whenever the counts are of the same nature, and the same judgment is to be given on them although the pleas be different.” 1 Chitty’s Pl., 200.

In the action at bar, if Harris had arrested Avery on a warrant, which Harris had-' -maliciously and without probable cause obtained from a court of competent jurisdiction, and had also converted the horse to his own use, then at common law, Avery would have had three distinct causes of action, which fie could unite in one suit— first, an action for the false imprisonment or malicious prosecution; second, an action of slander for the words spoken, and third, an action of trover for the conversion of the horse. These may all be united in an action on the case [1 Chitty’s Pl., 133, 134, 146; 1 Tidd’s Pr., 5;] trover being a species of case. Avery might, also, at common law, unite with these causes’ of action as many other causes of action as he might have, for malicious prosecution, slander, trover, criminal conversation, nuisance, and other causes of action which may be sued in an action on the case, and although they each may have arisen out of a different transaction, and at a different time, and in a different place.

But if Harris arrested Avery without any process— which was the fact in this case — and in an entirely irregular manner, then the two causes of' action for false imprisonment and slander could not at common law be united, as the first would have to be sued in an action of trespass and the second in an action on the case, and it would make no difference whether they both arose out of the same transaction or not.

Our code has abolished all the common law forms of action, and has established a system for the joinder of actions, — more philosophical, and complete within itself. It follows the rules of equity more closely than it does those of the common law, one object seeming to be to avoid the multiplicity of suits, and to settle in one action, as equity did, as far-as practicable, the whole subject matter of a controversy. Hence the common law ,on this question is no criterion. It is probably true that the two causes of action for false imprisonment and slander cannot, under our code, be united, unless both arise out of the same transaction, one being an injury to the person and the other being an injury to the character; but we do not know of any reason why they should not be united when both do arise out of the same transaction.

It is claimed by counsel for plaintiff in error that th earlier reports of the New York code are against this view of the case. He refers to 8 Howard’s Pr. B., 59, 78; 9 Howard’s Pr. B., 113; 1 Duer, 629. ¥e think it questionable whether these cases sustain the counsel’s views; but if they do, the later decisions under the same code are squarely against him. [See Brewer v. Temple, 15 Howard’s Pr. R., 286; Robinson v. Flint, 16 Howard’s Pr. R., 240.] In the latter case the court, as we think, expresses the true rule. They say “that the plaintiff may unite, first, as many legal causes of action as he pleases arising out of the same transaction; second, as many equitable causes of action as he pleases arising out of the same transaction; third, as many legal and equitable causes of action as he pleases arising out of the same transaction; fourth, as many causes of action as he pleases arising out of different transactions connected with the subject of the action.”

The order of the district court overruling the demurer to the petition is affirmed.

All the justices concurring.