Dewing v. Dewing

• Decision Date: 28 October 1910
• Docket Number: 16,809 - (61)
• Citation: 127 N.W. 1051,112 Minn. 316
• Parties: ELIZA M. DEWING v. SAMUEL DEWING and Others
• Court: Minnesota Supreme Court

127 N.W. 1051

112 Minn. 316

ELIZA M. DEWING v. SAMUEL DEWING and Others

Nos. 16,809 - (61)

Supreme Court of Minnesota

October 28, 1910

Action in the district court for McLeod county against Samuel Dewing, Louise Dewing and Frank Klaus, as sheriff, to have set aside for fraud two certain judgments against plaintiff's husband, and to restrain defendants from enforcing the judgments against his property. Defendant Samuel Dewing and defendant Frank Klaus, the sheriff of said county, demurred to the complaint on the ground that two causes of action are improperly united, and defendant Louise Dewing demurred on the same ground and on the additional ground that as to her it did not state a cause of action. From an order, Morrison, J., overruling the demurrers defendants Samuel Dewing and Frank Klaus appealed, and Louise Dewing separately appealed. Affirmed.

SYLLABUS

Number of causes of action determined by the facts.

The question whether a complaint states more than one cause of action is to be determined, not by its form, nor by the numbering and labeling of its different paragraphs by the pleader, but by the facts alleged therein. The complaint herein states a cause of action, and only one.

F. R Allen, for appellants.

C. G. Odquist and Sam G. Anderson, Jr., for respondent.

OPINION

START, C.J.

The plaintiff commenced this action in the district court of the county of McLeod to secure equitable relief only. The defendant Louise Dewing demurred to the complaint, upon the grounds that two separate causes of action were improperly united therein and that the facts alleged were not sufficient to constitute a cause of action as to her. The other defendants jointly demurred, on the sole ground that two causes of action were improperly united. They appealed from an order overruling their demurrer, and the other defendant also appealed from the order which also overruled her demurrer.

The complaint, reduced to its lowest terms, alleged that Walter W. Dewing was the owner of real estate of the value of $6,000 in the county of McLeod, and son of the defendants Dewing that his parents alienated his affections for the plaintiff, his wife, and by reason thereof he deserted her; that they entered into a conspiracy wrongfully to defraud the plaintiff of her inchoate interest in her husband's real estate, and to deprive her of maintenance and alimony from him; that in the execution of such conspiracy they procured a fraudulent judgment in the sum of $3,170 to be entered against him in the district court of McLeod county in the name of his father, which was based on no consideration whatever, and was secured by their fraud and artifice, whereby they persuaded him not to defend the action; that in further pursuance of the conspiracy th...