Vaule v. Steenerson

63 Minn. 110 | Minn. | 1895

COLLINS, J.

The plaintiff herein attempted to set forth two distinct causes of action in his complaint, and the defendant demurred upon two grounds: First, that several causes of action were improperly united; and, second, that the complaint did not state facts sufficient to constitute a cause of action. The court below sustained the-demurrer.

1. We are of the opinion that, as to the first cause of action, as' alleged, the general demurrer to the complaint as a whole was not well taken; for, while the averments might have been more explicit, enough appeared to constitute a cause of action against defendant as sheriff of his county for wrongfully and unlawfully refusing and neglecting to levy upon and seize property then within his jurisdiction, by virtue of an execution duly issued, directed, and delivered to him as such sheriff, and thereafter returning said execution wholly unsatisfied.

2. Assuming, as is contended by plaintiff (appellant), and as we-must assume when disposing of the demurrer upon the first ground. stated, that sufficient facts were alleged to constitute the second cause of action, the two causes of action were improperly united, and for this reason the order appealed from must be affirmed. The first cause of action was for defendant’s neglect and refusal to make a levy by virtue of the execution in his hands, duly issued upon a certain judgment; the second was for wrongfully and unlawfully levying another execution, also in his hands for service, upon the same judgment, and appropriating the proceeds thereof. Even if it could be held that these two causes arose out of transactions connected with the same subject of action, it is evident that they were inconsistent with each other and contradictory, so that they could not be united in the same action. See Moak, Van Santvoord, PI. 186, 187, and cases cited.

Although less than $100 was involved herein, counsel for both parties disregarded rule 15 (44 Minn, xix., 44 N. W. iv.), and caused the case to be set down for oral argument. For this reason no statutory costs will be allowed the prevailing party.

Order affirmed.