No. 3,507 | Cal. | Jul 1, 1873
The defendants demurred to the complaint for an alleged misjoinder of parties plaintiff; and the demurrer having been overruled, and an order to that effect entered of record, they subsequently filed an answer, denying the allegations of the complaint, and setting up matter in bar of the action. The action afterwards came on to be tried upon the issues joined by the answer, whereupon the defendants objected to the evidence offered by the plaintiff, the ground of the objection being that which had been taken by the demurrer, to wit: the alleged misjoinder of parties plaintiff. This objection taken at the trial was thereupon sustained by the Court, and the action was dismissed on that ground, the plaintiffs declining to amend their complaint.
We are of opinion that the Court below erred in the ruling made at the trial. The answer did not1 set up a misjoinder of plaintiffs, nor could it have properly done so, because the objection, if it were one, appeared upon the face of the complaint itself. The demurrer upon that ground had been overruled, and at the trial no objection against the complaint was open to inquiry, except the want of jurisdiction, or that the facts stated in the complaint did not constitute a cause of action. The demurrer for alleged misjoinder having been previously overruled, the case stood thereafter in the Court below as though no such demurrer had been interposed, unless, indeed, the Court should first set aside the order overruling it, and permit the demurrer to be again presented for consideration.
It would be productive of much confusion and probable surprise to parties if a demurrer for misjoinder of parties, or the like, once passed upon may be afterwards in effect renewed at the trial by the mere repetition of the same objec
Judgment reversed and cause remanded.