Leavenworth

• Decision Date: 07 March 1891
• Citation: 26 P. 16,45 Kan. 674
• Court: Kansas Supreme Court
• Parties: THE LEAVENWORTH, NORTHERN & SOUTHERN RAILWAY COMPANY v. MICHAEL WILKINS et al

26 P. 16

45 Kan. 674

THE LEAVENWORTH, NORTHERN & SOUTHERN RAILWAY COMPANY v. MICHAEL WILKINS et al

Supreme Court of Kansas

March 7, 1891

Error from Atchison District Court.

THE opinion states the case.

Judgment reversed.

Geo. R Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error.

John C Tomlinson, for defendants in error.

STRANG C. All the Justices concurring.

OPINION

STRANG, C.:

This was an appeal from the report of commissioners appointed to condemn the right-of-way for the railway of plaintiff in error. The plaintiffs below filed their amended petition in the district court of Atchison county, February 4, 1888. To this petition the defendant below presented a motion to require the plaintiffs to separately state and number their alleged causes of action, which motion was overruled. A demurrer was then interposed to said petition on the ground, first, that the first count or cause of action in said petition did not state facts sufficient to constitute a cause of action; second, the defendant demurs to the second count or cause of action in said petition, because it did not state facts sufficient to constitute a cause of action; and third, defendant demurs to the petition, because several causes of action are improperly joined. The demurrer was overruled. May 3, the defendant filed its amended answer and the case went to trial before the court and a jury. May 7, 1888, the jury returned a general verdict for the plaintiffs, and also a special verdict, consisting of answers to a large number of questions submitted to them by the defendant below. The general verdict was for $ 2,462.09. May 10, the defendant filed a motion to reduce the judgment, first, by $ 400, upon the ground that the special verdict showed the general verdict was that much too large; also by the sum of $ 170.59, for the reason that the plaintiffs were not entitled to interest. This motion was overruled. Defendant then filed a motion for a new trial, which was also overruled, and the defendant comes here asking a review of the case by this court.

Counsel for plaintiff in error in their brief first call our attention to their demurrer to the amended petition filed in the court below, and contend that the first count or cause of action therein set forth does not contain facts sufficient to constitute a cause of action. An examination of the petition satisfies us that the objection to this count of the petition is good. This cause of action fails to set up any claim for damages. Each cause of action in a petition containing more than one cause of action must "contain, in and of itself, a full and complete statement of all the facts constituting the cause of action therein sought to be stated. In other words, each count should be separate and distinct from every other count, and be complete within itself," except that a count subsequent to the first may be made sufficient by a proper reference to the first, or some other preceding count. (Stewart v. Balderston, 10 Kan. 131; Krutz v. Fisher, 8 id. 96.) The first count was designed to set out a cause of action for damages to lands owned jointly by Michael and Sarah Wilkins, arising from the condemnation of the right-of-way of the plaintiff; but it is not complete "in and of itself." It contains no claim for damages. If it contained the necessary allegations that are wanting, so that it could stand alone as a cause of action, there would be no difficulty in the way of the plaintiffs below recovering damages to at least a portion of the land therein described. They would then have a right to recover for any damage to the south half of the southeast quarter of section 10, because it is admitted that they are joint owners of that portion of section 10, and that it is the ground over which the right-of-way of the plaintiff in error was condemned, and its road-bed constructed. The demurrer to this cause of action must be sustained.

The second count, with its reference to the first, may state a cause of action in favor of Michael Wilkins; but, as there is a demurrer to the petition as a whole, upon the ground that distinct causes of action are joined therein, which cannot be united, and as the same question is raised by objections to evidence, we will examine this count in the light of these objections. This count alleges that the plaintiffs, Michael and Sarah Wilkins, are entitled to damages to the lands therein described, by reason of injuries sustained thereto, growing out of the condemnation of the right-of-way of plaintiff's railroad. The petition here avers that the lands therein described belong to Michael Wilkins as sole owner thereof. It follows, then, that Sarah Wilkins, who is made a co-plaintiff with Michael Wilkins in this count, has no interest whatever in any damages which might be awarded for injury to the land therein described. The question, then, is, Can the second count, which, if it state a cause of action at all, states one in favor of Michael Wilkins alone, be united, in the same petition, with the first count, which attempts to set out a cause of action in favor of Michael Wilkins and Sarah Wilkins jointly? We think not. Paragraph 4166, General Statutes of 1889, is the provision in our code relating to joinder of actions, the last clause of which reads as follows: "But the causes of action so united must all belong to one of these classes, and must affect all parties to the action, except to enforce mortgages or other liens." In this case, the first of the two causes of action affects Michael and Sarah Wilkins jointly, while the second cause of action affects only Michael Wilkins. It cannot be said, then, that the second count affects all the parties to the action, and hence the code forbids their joinder in the same petition. In Palmer v. Waddell, 22 Kan. 352, the court held that --

"Where two or more persons have separate causes of action against the same defendant, arising from the obstruction of a natural water-course, and the injury of their lands and crops thereby, they cannot unite in the same petition to recover damages for such injuries which are plainly distinct and unconnected."

See, also, Hudson v. Atchison, 12 Kan. 140; Swenson v. Plow Co., 14 id. 387; Schultz v. Winter, 7 Nev. 803; The State ex rel. v. Comm'rs of Reno Co., 38 Kan. 317; Durein v. Pontious, 34 id. 353; Jeffers v. Forbes, 28 id. 178.

Counsel for defendants in error refer to the case of Comm'rs of Smith Co. v. Labore, 37 Kan. 480, 15 P. 577. In that case, a father and two sons each owned a quarter-section of land lying together in a body. They entered into a copartnership to breed and raise cattle, and by the terms of the copartnership agreement they were to use the three quarters of land together in the business as one tract. A highway was constructed so as to affect these lands. Damages were separately awarded to two of these parties, and none to the third. Each one for himself appealed. On the trial in the district court, by the consent of parties, the three ca...