House v. Lowell

• Decision Date: 28 February 1870
• Citation: 45 Mo. 381
• Parties: HIRAM HOUSE, Plaintiff in Error, v. JOHN W. LOWELL et al., Defendants in Error.
• Court: Missouri Supreme Court

45 Mo. 381

HIRAM HOUSE, Plaintiff in Error,

v.JOHN W. LOWELL et al., Defendants in Error.

Supreme Court of Missouri.

February Term, 1870.

Error to Sixth District Court.

Ensworth & Carter, for plaintiff in error.

Strong & Chandler, for defendants in error.

BLISS, Judge, delivered the opinion of the court.

The defendant claims that the petition unites different causes of action, without being separately stated, with the relief sought for each, as required by the statute. (Wagn. Stat. 1012, § 2. He made no objection, either by demurrer or motion, to this alleged misjoinder; but answered, denying the facts set forth in the petition, and went to trial. At the trial he objected to any evidence upon the ground of such misjoinder, and moved in arrest of judgment for the same reason.

The court held that the objection came too late, but its judgment was reversed in the District Court. Section 6 of article 5, “of pleadings,” etc., p. 1014, enumerates the causes for which a defendant may demur to a petition, among which is, “fifth, that several causes of action have been improperly united;” and section 10 of the same article provides that if the objection do not appear upon the face of the petition, it may be taken by answer; but “if no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same.” The court, in a case hereinafter cited, seems to have held, though indirectly, that the improper joinder of causes of action referred to in the fifth subdivision of section 6, above quoted, refers as well to the improper commingling in the same count of causes of action that might have been joined, if separately stated, as to the improper joinder of different causes of action in different counts, inasmuch as it holds that the first as well as the second error can be reached by demurrer. The matter often came before the different judges of the Supreme Court of New York, whose statutes contain the same provision as ours, and it was held by some that causes of action were improperly united when they were not separately stated, and that the defect should be taken advantage of by demurrer; while others decided that the clause did not refer to the manner of the union of causes, but to the union itself, and that the prohibition against the improper commingling of causes in one count is but one of the rules of pleading contained in the code, and should be enforced by motion. The latter view has been sustained by the Court of Appeals in Bass v. Comstock, 38 N. Y. 21. The same view was taken by our own court in Otis v. Michigan Bank, 35 Mo. 128, and in Mooney v. Kennett, 19 Mo. 551. But so far as the decision of the present case is concerned, it does not matter whether we hold that the defendant should have objected to the impropriety in the joinder by demurrer, or by motion to strike out all that does not pertain to one cause of action as redundant or irrelevant; for if by demurrer, he is expressly held by the statute to have waived the objection; or if by motion, the insertion of the redundant or irrelevant matter, or the failure to separate the cause of action, is one of those formal defects cured by verdict. I am aware that it has been held by this court that either of these improper joinders can be reached by motion in arrest. In Hoagland v. The Hann. & St. Jo. R.R. Co., 39 Mo. 451, the court held that both for a misjoinder of counts and for a union of several causes in one count, the motion in arrest of judgment should have been sustained (p. 457); and, for authority, reference was made to Clark v. the same defendant, 36 Mo. 202. In the latter case, on page 215, the court held the count under...