50 Wis. 406 | Wis. | 1880
The appeals in these cases are taken from an order of the court below sustaining the separate demurrers of the two respondents to the complaint of the plaintiff. There is but one action, and but one opinion will be necessary to
We think this allegation quite insufficient to show a transfer of the note mentioned in the complaint to the Second Ward Savings Bank. The other allegations of the complaint show that the respondent Jacobs was the owner and holder of the note in question, and that the same was delivered by the plaintiff to him as his property and not the property of the savings bank. Under the allegations of the complaint, no cause of action is claimed to be stated against the bank, and no relief demanded as to the bank, unless the bank be the owner and holder of -the note by transfer from Jacobs to it; and, as no such transfer is alleged in the complaint, there is no more reason for making the bank a party to the action than for making any other stranger a party thereto.
One of the grounds of demurrer of the respondent Jacobs is, that it appears on the face of the complaint that several causes of action are improperly united. If it be admitted that the facts set out in the complaint are sufficient to constitute a cause of action against Jacobs, then we think it must also be admitted that it states facts sufficient to constitute two causes of action — one to recover damages for the loss sustained by the plaintiff in selling his own stock to Bsetz and receiving Bmtz’s notes therefor, relying upon the alleged false representations of the respondent Jacobs as to the pecuniary responsibility of said Bsetz; and another, to be relieved from
The only authority for uniting these two causes of action in the same complaint must be found, if found at all, in subdivision 1, sec. 2647, E. S., which reads as follows: “The plaintiff may unite in the same complaint several causes of
It seems to us quite clear that the plaintiff would have stated no cause of action arising out of this indorsement, if
The causes of action stated in the complaint not arising out of the same transaction, and the one being what was formerly denominated a legal and the other an equitable action, they cannot be joined in the same complaint, and the court below properly sustained the demurrer of Jacobs upon the ground that several causes of action were improperly joined.
The learned counsel for the appellant insists that these causes. of action may be properly joined, under subdivision 3 of said section 264T, as actions for injuries with or without force to
The case of Riemer v. Johnke, 37 Wis., 258, was an action of ejectment, and contained allegations showing that the defendant was in possession, committing waste upon the lands, and prayed an injunction to restrain the defendant from further wasting the property. The court held that there was no separate cause of action stated as to the waste, and that the allegations were properly in the complaint as a foundation for asking an injunction pending the action, to preserve the plaintiff’s property. Damon v. Damon, 28 Wis., 510, was an action for divorce by the wife, with a claim for alimony. A third person,.who, it was alleged, had taken a conveyance of some part of the husband’s property for the purpose of defeating the plaintiff’s recovery of alimony, was made a party. The court held that the allegations of facts showing the value of the defendant’s property, in order to show what amount of alimony would be proper, did not constitute a separate cause of action, and that the joinder of the third person as a defendant was necessary and proper in order to enforce any decree for alimony which might be decreed in the case.
Blake v. Van Tilborg, 21 Wis., 672, was an action brought by the plaintiff to compel the defendant Yan Tilborg to account, as the agent of the plaintiff, for money and property received by him as such agent, and contained allegations showing that defendant had with such money and property of the plaintiff purchased lands and conveyed the same, without any consideration, to two other persons, who were also made defendants. The complaint was sustained on the ground that a complaint is not multifarious “ which sets out a cause of action so entire against one defendant as to be incapable of prosecution as to him in several suits, although other defendants may be necessary parties to only a portion of the case.” The court likened the case to an action by a judgment creditor
The case of Bassett v. Warner, 23 Wis., 673, was similar to the case of Blake v. Van Tilborg. It was an action against an administrator for an accounting, and a third person was made a party to the action on allegations that the administrator had conveyed land belonging to the estate to him fraudulently, and that he was cognizant of the fraud. It was held that the complaint was not multifarious, and that the causes of action were properly joined.
The case of Truesdell v. Rhodes, 26 Wis., 215, simply decides that a complaint is not subject to the objection that two causes of action are improperly joined, which, in fact, states but one good cause of action, and contains other allegations which do not constitute a separate cause of action.
Hone of these cases are similar to the one at bar. Here two causes of action different in their nature, and not so connected that it is at all necessary to connect the one with the other, and which require different trials, are joined. The trial of the action to recover the damages for the injury sustained by the plaintiff by'reason of the sale of his stock, would not in any way interfere with the right of the plaintiff to maintain a second to be relieved from his indorsement of the note belonging to Jacobs. There is nothing to be gained by the joinder of these actions, but much inconvenience arises therefrom. They necessarily require separate trials, one by the court and the other by a jury, and their joinder should not be permitted unless they come clearly within the statute.
We have not considered whether the allegations in the complaint are sufficient to constitute a cause of action, either at law or in equity; but assume that, if they are sufficient for the one purpose, they are equally so for the other. If they are sufficient to constitute one cause of action, they are equally
By the Gourt. —- The order of the county court is affirmed as to both the respondents, and the cause remanded for further proceedings according to law.