26 Kan. 226 | Kan. | 1881
The opinion of the court was delivered by
On the 3d day of January, 1881, the plaintiffs in error filed their petition in the district court of Marshall county against the defendants in error, alleging
The objections presented to the petition in the briefs, are:
1. That there is a defect of parties plaintiff.
2. It seeks to avoid and rescind an executed written contract upon the ground of fraud, without alleging the facts which constitute the fraud, but merely the conclusions the plaintiffs draw from the transaction, and choose to denominate fraudulent.
3. It seeks to avoid ánd rescind the contract, without returning, or offering to return, that which the petition upon its face shows the plaintiffs received in the transaction.
4. It seeks to avoid and rescind the contract, and at the same time to sue and recover damages claimed to have been sustained by reason of the transaction.
None of these objections is tenable. As to the first, there is nothing on the face of the petition showing other parties plaintiff to be necessary or wanting. The argument of defendants’ counsel upon this point, proceeds upon the mistaken notion that where there is a misjoinder of parties, there is necessarily a defect of parties. Such is hot the case. There is an excess, but certainly no defect. A demurrer on account of a defect of parties plaintiff is given by law only for a defect, and not for an excess. Frank McKee is the proper party plaintiff, and if he has improperly joined with himself other plaintiffs, the remedy to correct such irregularity is not by a demurrer alleging a defect of parties. While it is a
Counsel for defendants in this connection contend, that as the patent office of the United States is as accessible to one person as another, and as information concerning patents can be obtained by one person as readily as another, all represen
The final objection to the petition is not embraced in the demurrer. A general demurrer to a petition for want of facts
The judgment of the district court must be reversed, and the case remanded.