45 Mo. 381 | Mo. | 1870
delivered the opinion of the court.
The defendant claims that the petition unites different causes of action, without being separately stated, with the relief sought for each, as required by the statute. (Wagn. Stat. 1012, § 2.) He made no objection, either by demurrer or motion, to this alleged misjoinder; but answered, denying the facts set forth in the petition, and went to trial. At the trial he objected to any evidence upon the ground of such misjoinder, and moved in arrest of judgment for the same reason.
The court held that the objection came too late, but its judgment was reversed in the District Court. Section 6 of article 5, “ of pleadings,” etc., p. 1014, enumerates the causes for which a defendant may demur to a petition, among which is, “fifth, that several causes of action have been improperly united;” and section 10 of the same article provides that if the objection do not appear upon the face of the petition, it may be taken by answer; but “if no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same.” The court, in a case hereinafter cited, seems to have held, though indirectly, that the improper joinder of causes of action referred to in the fifth subdivision of section 6, above quoted, refers as well to the improper commingling in the same count of causes of action that might have been joined, if separately
The judgment of the District Court is reversed, and that of the Court of Common Pleas affirmed;