Claire v. Claire

• Decision Date: 07 February 1880
• Citation: 10 Neb. 54,4 N.W. 411
• Parties: CLAIRE v. CLAIRE.
• Court: Nebraska Supreme Court

10 Neb. 54

4 N.W. 411

CLAIRE

v.CLAIRE.

Supreme Court of Nebraska.

Filed February 7, 1880.

Error from the district court for Nemaha county.T. B. Stevenson and J. H. Broady, for plaintiff in error.

T. L. Schick, for defendant in error.

LAKE, J.

The first matter assigned for error is the sustaining of the motion of the defendant to compel the plaintiff to elect on which cause of action he would proceed. As to the time when this order to elect was made there is nothing to complain of, for if, in consequence of its being made just on the eve of trial, additional time were needed to make preparation, it should have been requested by proper motion. There is nothing in the record to show that delay was either asked or needed.

On the part of the plaintiff it is contended that the petition states but a single cause of action, while the defendant insists there are two, viz.: one on an account stated, and another on a promissory note. Referring to the petition we find that it contains, first, a statement of facts showing, as is conceded, an account stated between the plaintiff and defendant, followed by the averment of the execution and delivery of a promissory note by the defendant to the plaintiff for the balance found to be due him on said account. While we do not commend this as a sample of good pleading, yet we must agree with the plaintiff in her claim that but a single cause of action is here set forth. The recital of facts showing a stated account was, in effect, but a statement at length of the consideration of the note, which of course is wholly unnecessary in an action on a note, and probably could have been stricken out on motion.

An able law writer says: “If the facts alleged show one primary right of the plaintiff, and one wrong done by the defendant which involves that right, the plaintiff has stated but a single cause of action.” Pomeroy's Remedies, etc., § 455. Applying this rule it is clear that but one primary right is shown by the plaintiff, viz.: to be paid the money found to be due her from the defendant, whose wrong was the withholding of payment. The court was in error, therefore, in holding that two causes of action were stated. But even if two causes of action existed and were improperly joined, the motion to require the plaintiff to elect would have been improper, and should have been overruled. Section 94 of the Code of Civil Procedure provides that the defendant may demur to the petition on certain grounds, one of which is “that several causes of action are improperly joined;” and section 95 provides further that “the demurrer shall specify distinctly the grounds of objection to the petition. Unless it do so, it shall be regarded as objecting only that the petition does not state facts sufficient to constitute a cause of action.” And in the next section it is declared that if such improper joinder be not objected to “either by demurrer or answer, the defendant shall be deemed to have waived the same.” To this petition the answer was only a general denial,...