City of Alliance v. Cover-Jones Motor Co.

• Decision Date: 30 November 1951
• Docket Number: COVER-JONES,No. 33073,33073
• Citation: 154 Neb. 900,50 N.W.2d 349
• Parties: CITY OF ALLIANCE v.MOTOR CO. et al.
• Court: Nebraska Supreme Court

Page 349

50 N.W.2d 349

154 Neb. 900

CITY OF ALLIANCE v. COVER-JONES MOTOR CO. et al.

No. 33073.

Supreme Court of Nebraska.

Nov. 30, 1951.

Syllabus by the Court.

1. A cause of action, as used in section 25-805, R.R.S.1943, is a primary right possessed by a plaintiff and a corresponding primary duty devolving upon a defendant, together with a delict or wrong done by the defendant which consists in a breach of such primary right and duty.

2. A cause of action, when properly pleaded, consists of the facts from which the plaintiff's primary right and the defendant's corresponding primary duty have arisen, together with the facts which constitute the defendant's delict or act of wrong.

3. The remedial right is the consequence, the secondary right which springs into being from the breach of the plaintiff's primary right by the defendant's wrong, while the remedy is the consummation or satisfaction of this remedial right.

Metz & Metz, Alliance, for appellant.

Reddish & Reddish, P. E. Romig, J. W. Weingarten, Alliance, W. P. Loomis, Omaha, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

SIMMONS, Chief Justice.

In this action the plaintiff City of Alliance, a municipal corporation, sought a decree annexing certain real estate to it; that certain parts of the real estate be opened and dedicated to the use of the public as streets; that the streets so designated be named; that the addition be named as set out in the petition; and for equitable relief.

City of Alliance will be hereinafter referred to as plaintiff. The defendants were Cover-Jones Motor Company, a corporation; Chicago, Burlington & Quincy Railroad Company, a corporation; and all persons having or claiming any interest in the land.

Cover-Jones Motor Company filed a motion to require the plaintiff to separately state and number its two causes of action, asserting that by one cause plaintiff sought to annex its property to the city, and by the other to appropriate and dedicate a portion of its property to the plaintiff for public use. The trial court sustained the motion. The plaintiff elected to stand upon its petition. Cover-Jones Motor Company then moved to dismiss the petition as to it. The trial court sustained the motion without prejudice. Plaintiff appeals. We affirm the judgment of the trial court.

Cover-Jones Motor Company will be hereinafter referred to as the defendant.

In its petition plaintiff alleged the enactment of an ordinance providing for the annexation to it of certain described lands of the two named defendants. The ordinance as pleaded was described as one annexing certain lands, compelling the laying out of certain streets and avenues, and naming them and the area so annexed. The ordinance set out that the lands were contiguous and adjacent to the city and by act of the owners had been subdivided into parcels containing not more than five acres each and would receive material benefits from annexation. The ordinance further described certain lands by metes and bounds and provided that a certain part of it be dedicated to the use of the public as a street and another part as an avenue, and shall forthwith be laid out and opened by the owners, in part as a street and in part as an avenue. The lands so described are owned by the defendants. From a study of the descriptions it appears that the land so to be laid out was to widen an existing street and open an extension of an avenue. The ordinance then directed that an action be brought in the district court for the annexation and for the laying out of the street and avenue.

The petition then alleged that if the territory sought to be annexed was annexed, certain parts described by metes and bounds should be opened and dedicated to the public as a street and an avenue. Plaintiff prayed as above stated.

In essence plaintiff's argued assignments of error are that the trial court erred in sustaining the motion.

The motion of defendant is based on section 25-805, R.R.S.1943, which provides: 'Where the petition contains more than one cause of action, each shall be separately stated and numbered.'

Defendant's position is stated in the motion made and sustained in the trial court.

The plaintiff's position is that it has pleaded but one cause of action and on that cause seeks two remedies.

In Johnson v. American Smelting & Refining Co., 80 Neb. 250, 255, 116 N.W. 517, 518, we quoted with approval this language: "What is a cause of action? We must keep in view the difference between the subject of action and the cause of action. The subject of action is what was formerly understood as the subject matter of the action. * * * The cause of action is the right claimed or wrong suffered by the plaintiff, on the one hand, and the duty or delict of the defendant, on the other, and these appear by the facts of each separate case." That language was again cited with approval in Westover v. Hoover, 94 Neb. 596, 143 N.W. 946, 48 L.R.A.,N.S., 984. See, also, Emel v. Standard Oil Co., 117 Neb. 418, 220 N.W. 685.

However, in Myers v. Moore, 78 Neb. 448, 110 N.W. 989, 990 we held this: 'And by the phrase 'cause of action', as here used, is meant, not the formal statement of the facts set forth in the petition as a cause of action, but the subject matter upon which the plaintiff grounds his right of recovery.' We approved this definition in Burke v. Northup, 98 Neb. 849, 154 N.W. 715; in Zelen v. Domestic Industries, 131 Neb. 123, 267 N.W. 352; in Lincoln Joint Stock Land Bank v. Barnes, 143 Neb. 58, 8 N.W.2d 545; in Gergen v. Western Union Life Ins. Co., 149 Neb. 203, 30 N.W.2d 558; and in Schwank v. County of Platte, 152 Neb. 273, 40 N.W.2d 863.

In Sickler v. City of Broken Bow, 143 Neb. 542, 10 N.W.2d 462, 464, we quoted with approval this language: "In determining whether more than one cause of action is stated, the main test is whether more than one primary right or subject of controversy is presented, other tests being whether recovery on one ground would bar recovery on the other, whether the same evidence would support the different counts, and...