2 N.D. 401 | N.D. | 1892
The opinion of the court was delivered by
The complaint in this action contains three causes of action, and each is separately stated. The first cause of action is voluminous, but it need not be set out in full in order to understand the questions involved on this appeal. The first cause of action is fairly summarized in appellant’s brief as follows: “Plaintiff having mide to defendant an absolute conveyance of his farm to secure the latter against liability as plaintiff’s bail, and defendant having been fully exonerated as such bail, plaintiff thereupon became entitled to a reconveyance; but, being in jail and unable to attend to his business affairs in per
, -The single question for determination is whether the acts and transactions of the defendant in- relation to the $75 note, which are stated separately as the third cause of action, are properly united in the. same complaint with those other matters and transactions which are set o.ut in the first and second causes of action. The matters set out in the first and second causes of action are confessedly and clearly of a character which involve a relation of trust between the parties to the action, and hence, as was held by this court on a former appeal of this action, such matters must be heard and disposed of. by a court of equity, and not by-a court of law. 1 N. Dak. 75. All of the claims of the plaintiff against the defendant, as stated in the first and second causes of action, are clearly such, as may be united in one complaint against a trustee as such. Subdivision 7,- §. 136, Code Civil Proc. (Comp. Laws, §4932) expressly provides that sever al causes of action may be united-in a complaint where there are “ claims against a trustee by
Counsel further argues that the first paragraph of the third cause of action carries forward and incorporates with that cause of áction all allegations in the first and second causes of action, ■“so far as the same set forth the premises and agreements made by and between plaintiff and defendant, and the obligations arising therefrom.” As already shown there are no averments of the complaint connecting the note transaction with any trust between the parties; but we deem it proper to add that the language quoted above cannot, under the rules of pleading, operate to make any allegations of the first and second causes of action a part of the third. Each cause of action must be complete in itself, but some courts permit a reference to be made to distinct allegations or serparate paragraphs in a preceding cause of action, where the same embody distinct averments of fact, and by such reference re-allege the same facts in a later cause of action. This is perhaps the better rule. ■ It appears to be the rule in New York. Simmons v. Fairchild, 42 Barb. 404; Manufacturing Co. v. Beecher, 55 How. Pr. 193. But a recent case in California is strongly adverse to such a rule. Pennie v. Hil