Hurd v. Simpson

• Decision Date: 07 November 1891
• Citation: 47 Kan. 372,27 P. 961
• Parties: W. H. HURD v. MARY H. SIMPSON et al
• Court: Kansas Supreme Court

27 P. 961

47 Kan. 372

W. H. HURD v. MARY H. SIMPSON et al

Supreme Court of Kansas

November 7, 1891

Motion for Rehearing.

THE material facts appear in the opinion, filed November 7, 1891.

Judgment affirmed.

Geo. E McMahon, for the motion.

Shepard Grove & Shepard, contra.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought by Mary H. Simpson and R. J. Simpson, wife and husband, against W. H. Hurd, to recover the sum of $ 5,650, claimed to be due to them as the purchase-price of certain real estate sold and conveyed by them to the defendant. The petition stated and showed a joint cause of action in favor of the plaintiffs and against the defendant for the purchase-price of the land. It appeared on the trial, however, that although the sale and conveyance was by a single deed executed by both the plaintiffs jointly, for a joint consideration of $ 5,650, yet that each of the plaintiffs owned a separate portion of the real estate conveyed, and it is therefore now claimed that each had a separate cause of action, and that the two together did not have a joint cause of action, and therefore could not maintain this action for the purchase-price, nor for any portion thereof. This question, however, was not raised in the court below by either a demurrer or an answer, and hence, in our former decision in this case, (ante, p. 245; same case, 26 P. 465,) it was held that the question of misjoinder was waived, and that the plaintiffs might therefore recover in the action jointly for whatever might still remain due of the purchase-price of the land, which the court below found to be, principal and interest, $ 2,240.57; and the court below rendered a joint judgment in favor of the plaintiffs and against the defendant for this amount.

Of course this court did not intend to hold in our former decision, and would not hold if the question were properly raised, that where each of two persons has a separate cause of action, such two persons together might maintain a joint action to enforce their separate causes of action. ( Hudson v. Comm'rs of Atchison Co., 12 Kan. 140; Swenson v. Plow Co., 14 id. 387; Palmer v. Waddell, 26 id. 352; Dobbs v. Stauffer, 24 id. 127, 128; Jeffers v. Forbes, 28 id. 174; McGrath v. City of Newton, 29 id. 365; City of Ellsworth v. Rossiter, 45 id. 237.)

Separate causes of action in favor of separate individuals cannot, in the nature of things, constitute a single cause of action or a joint cause of action, or a cause of action in favor of any two or more or all of the several plaintiffs. But such causes of action are nevertheless causes of action in favor of the separate plaintiffs, and are not nullities. Nor would this court hold that a misjoinder of parties or an excess of parties would constitute a defect of parties. (McKee v. Eaton, 26 Kan. 226.) Nor would this court hold that a demurrer would lie in any case for a misjoinder of parties. (Civil Code, § 89; Town Co. v. Maris, 11 Kan. 128.) But this court intended to hold by our former decision in this case, and now holds, that under the facts of this case and the provisions of the civil code the defendant below, plaintiff in error, so waived any question of misjoinder which might possibly be in the case that the court below did not err as against the defendant in rendering a joint judgment, as it did upon the facts of the case, in favor of the plaintiffs and against the defendant for the amount of the purchase-price of the land still remaining due; and therefore this court now holds that the motion for a rehearing in this case should be overruled. Under § 35, article 4, of the civil code, " all persons having an interest in the subject-matter of the action and in obtaining the relief demanded may be joined as plaintiffs, except as otherwise provided in this article;" and § 37 of the same article provides as follows:

"SEC. 37. Of the parties to the action, those who are united in interest must be joined, as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason being stated in the petition."

And under § 83, article 7, of the civil code, "the plaintiffs may unite several causes of action in the same petition;" but, in order that they may do so, these "causes of action" must all belong to one of the several classes of actions mentioned in said section, "and must affect all the parties to the action, except in actions to enforce mortgages or other liens." Now, where each of two plaintiffs has a separate cause of action, the separate cause of action of one of the plaintiffs would certainly not in any manner affect the other plaintiff; hence, under said § 83 of the civil code, such two separate "causes of action" could not be united in one and the same action. But if they should be so united, then there would be an improper joinder of causes of action. (Jeffers v. Forbes, 28 Kan. 174.) And the question whether they could be so united or not might properly be raised by a demurrer to the petition, where the facts showing the same appear upon the face of the petition. (Civil Code, § 89, subdiv. 5; Jeffers v. Forbes, 28 Kan. 174 at 177; Barnes v. City of Beloit, 19 Wis. 93; Newcomb v. Horton, 18 id. 566. Also, in the same connection, see Fuller v. Fuller, 5 Hun 595; Fisher v. Hall, 41 N.Y. 416.) In the opinion of the court in case of Jeffers v. Forbes, supra, delivered by Mr. Justice BREWER, the following, among other language, is used:

"The first ground of demurrer, as heretofore stated, is, that several causes of action were improperly joined; and the contention is, that the setting aside of each of the six several deeds from the plaintiffs to the defendant, W. H. Forbes, was a separate and independent cause of action, in which only the grantor in such deed had any interest. . . . We think the contention of the defendants in error is correct, and that the ruling of the district court must be sustained on this ground. [Such ruling of the district court was, that the demurrer should be sustained.] . . . As each grantor is alone interested in obtaining the cancellation of his own deed, and as all the other plaintiffs would be improper parties in an action brought by the one alone to set aside his individual deed, so where all the parties unite in an action to have set aside six several deeds by separate grantors conveying separate interests, they unite six several causes of action in one suit, and six several causes of action in each of which only a portion of the plaintiffs is interested. . . . We conclude, then, that upon this ground the ruling of the district court is correct, and must be affirmed. We might stop here, but inasmuch as under § 92 of the civil code the court, upon the application of the plaintiffs, must allow them to file separate petitions for the different causes of action, it is due to the parties that we should examine further, and determine whether the second ground of demurrer, namely, that the petition does not state facts enough to constitute a cause of action, is sustainable."

In the case of Barnes v. City of Beloit, supra, the supreme court of Wisconsin, in holding that a demurrer to the complaint upon the ground that several causes of action were improperly joined would lie, used the following, among other language:

"But the complaint in the action sets forth separate causes of action, one in favor of each plaintiff, without being separately stated; and if so, several causes of action are improperly united. The counsel for the respondents, however, maintains that different causes of action, within the meaning of § 5, ch. 125, R. S., are improperly united only where there are in the same complaint causes of action of the different classes mentioned in § 29 of the same chapter; as, for instance, where the complaint contains one count in tort and another on contract; and that where there are several causes of action, to wit, one in favor of each of several plaintiffs, in the same complaint, and all of the same class, the remedy is not by demurrer, but by motion. He cites several cases to this point, but they are all cases where several causes of action in favor of all the plaintiffs, affecting all the parties, and which might be united in the same complaint, were not separately stated. But in this case each separate cause of action does not affect all the parties to the action, and they could not be united without violating the provisions of § 29, aforesaid. In other words, the plaintiffs have no common pecuniary interest. The complaint would have been held bad before the code for multifariousness."

In the case of Fuller v. Fuller, supra, the following was decided:

"Where, upon the trial of an action brought by two plaintiffs to recover for the conversion of a team of oxen, it appeared that each of the plaintiffs owned one of the oxen, held, that a motion for a nonsuit of both of the plaintiffs, on the ground that they had brought a joint action and shown a several interest, was properly denied." (Syllabus.)

In the case just cited, the case of Simar v. Canaday, 53 N.Y. 298, is referred to, which decides as follows:

"A misjoinder of parties plaintiff is not a ground for dismissal of the complaint as to all the plaintiffs, if either has shown that he has a good cause of action. In such case the motion must be for dismissal of the complaint of the plaintiff in whom no right of action appears." (Syllabus.)

In the case of Fisher v. Hall, supra, the plaintiffs were the children and their husbands and the grandchildren of George Fisher. Their action was for the recovery of certain undivided interests in real property, and they brought their action as devisees under the last will...