47 S.C. 211 | S.C. | 1896
The opinion of the Court was delivered by
This action was commenced on the 28th day of February, 1895. The complaint sets out three causes of action, separately stated. The defendants made answer to the complaint. Defendants did not demur, nor did they object in their answer that several causes of action had been improperly united in a single complaint. A trial of the issues made by the pleadings at the November term, 1895, resulted in a mistrial. After a mistrial was had, to wit: 19th February, 1896, a notice from the defendants was served upon the plaintiff, to wit: “that the plaintiff is required to elect one of the three causes of action set up in the complaint for a separate trial, and to notify the defendants which will be tried first, and the order of trial of the
It will be seen that the five grounds of appeal are intended to bring out the view supposed to prevent the order made by Judge Witherspoon. The appellant emphasizes the view, that the defendants having failed to demur to his complaint on the ground that the complaint contained several causes of action, which were improperly united therein, as required by subdivision 5 of section 165 of our Code of Procedure, and having failed to set up any such objection in their answer, as required by section 169 of said Code, thereby waived all objection to the complaint. This view seems sound, if we will remember that questions of jurisdiction and also the oral demurrer, that the complaint fails to state facts sufficient to contain a cause of action, are reversed. The appellant then brings to view that, under section 188 of the Code of Procedure, he is allowed to unite as many causes of action, both legal and equitable, in his complaint, as he chooses, provided always that he complies with the conditions specified in said cited section. He then insists that these things being so, there is no law that sustains the Jtidge’s action. The appellant, in his argument, sets out a history of the decisions of our courts of last resort, beginning with Latimer v. Sullivan, 30 S. C., 111; Read v. R. R. Co.,
It is the judgment of this Court, that the order of the Circuit Court be reversed in every particular.