23 S.D. 409 | S.D. | 1909
This cause is one before the court upon a rehearing; the former opinion of this court being found in 21 S. D.
The demurrer stated three grounds, but appellant is relying, upon this appeal, upon one of these grounds only, to wit, that several causes of action have been improperly united. We are inclined to the view that the trial court was correct in overruling such demurrer, and that the former judgment of this court cannot be sustained. It is the theory of the respondents that there is only one.cause of action alleged, and furthermore that, even if it could be held that, owing to the fact that the undertaking is security for both judgments, there are two causes of action alleged, one upon each judgment, yet under the assignment to Muller and Conway they take the same interest in the cost judgment that they do in the original county court judgment, and that therefore the two causes of action would be properly united. This not being a demurrer on ground of misjoinder lof parties, we do not find it neces
Justice Corson in the former opinion of this court takes the view that the respondents Muller and Conway have no interest in the co,st judgment, and, further, as we understand his views, that there are two separate causes of action. He cites,, as sustaining his view, Nagel et al. v. Lutz et al., 58 N. Y. Supp. 816. By referring to his opinion, or to such case itself, ,as reported, it will be found that this was an action brought by Nagel and one Callahan against Lutz and other.s upon an .instrument in words and figures as follows: “Buffalo, N. Y. May 19, 1898. On demand, after 30 days, we promise to pay to the order of John F. Nagel seven hundred fifty ($750) dollars, also to Charles H. 'Callahan the sum of seven hundred fifty ($750) dollars, with use.” The above instrument was signed by Lutz and others. It. will readily be seen that this instrument contained in itself two entirely separate and distinct contracts, either one of which could be broken without in any manner affecting the other. It will .also be seen that these contracts were 'agreements to make payments not to one person, but to two different parties. If in the case at bar the plaintiffs and respondents were suing the defendant Rust upon the two judgments, there would be some analogy between such action and the New York case, because in such case there would be two separate causes of action. Judge Corson cites several authorities, which were cited •in the above New York case. We have examine'd all of these, and found none in any wise analogous to the case at bar.
Bliss, in his work on Code Pleading (2d Ed.) § 113, says: “We have defined an action to be a judicial proceeding for the prevention or redress of a wrong. The cause of action, then, is the wrong.” In the same section, in speaking of what may be considered a wrong, he 'states that “the wrong may be done by the refusal to respond to an obligation.” Among the definitions of a cause of action in 6 Cyc. 705, are the following: “Matter for which an action may be brought;” “the ground on which an action may be sustained;” “the fact or combination of facts which give rise to a
If the respondent Jerome alone were suing, we would apprehend that there would have been no claim by any one that two causes of action were united in the complaint. It is true that two different matters were secured by this one undertaking, but this undertaking runs to one person, and a breach thereof gives but one cause of action. The amount of relief which may be recovered depends upon the extent of the breach, to wit, as to whether the matters secured by such undertaking had been in part paid or net. Undoubtedly, under section 90 of the Code of Civil Procedure, if the plaintiff Jerome had been unwilling to join as plaintiff, he could have been made a defendant; and, furthermore, if Jerome had brought this action alone as plaintiff, under section 96 of the Code of Civil Procedure, Muller and Conway would have had a right to intervene to protect their rights.
It being therefore clear that but one cause of action is set forth in the complaint herein, and the only ground of demurrer before us being that claiming misjoinder of causes of action, the order of the trial court overruling the demurrer should be, and the same is, affirmed', and the former opinion of this court is overruled.