Lopez v. Townsend

• Decision Date: 16 May 1933
• Docket Number: 3784.
• Citation: 25 P.2d 809,37 N.M. 574,1933 -NMSC- 045
• Parties: LOPEZ v. TOWNSEND et al.
• Court: New Mexico Supreme Court

25 P.2d 809

37 N.M. 574, 1933 -NMSC- 045

LOPEZ v. TOWNSEND et al.

No. 3784.

Supreme Court of New Mexico

May 16, 1933

On Rehearing September 26, 1933.

Appeal from District Court, Santa Fé County; Otero, Judge.

Action by Andrellita Sandoval de Lopez against Charles T. Townsend and others. From an adverse judgment, plaintiff appeals.

Reversed and remanded, with directions.

Brice & Sanchez, of Santa Fé, for appellant.

Gilbert & Hamilton, of Santa Fé, and J. D. Atwood, of Roswell, for appellees.

BICKLEY Justice.

This action was brought under Compiled Statutes 1929, section 36-101, by plaintiff (appellant), widow of Venceslao Lopez who, it is claimed, was killed through the negligence of the defendants, Townsend & Scenic Stages, Inc., in operating a stage coach between the cities of Santa Fé and Roswell, by striking him with such coach as he was walking in the highway near the city of Santa Fé, driving a team of horses. A defendant, American Fidelity & Casualty Company, was surety on the bond of the other defendants as provided by article 10, chapter 11, Compiled Statutes 1929 (section 11-1001 et seq.).

To the plaintiff's complaint, demurrers were filed by the respective defendants; such demurrers being in most particulars the same. The grounds of the demurrer, briefly were that two causes of action had been improperly joined in the said complaint, to wit: a cause of action sounding in tort against the defendant Townsend and the Scenic Stages Inc., with a cause of action in contract against the defendant American Fidelity & Casualty Company; that there is a misjoinder of parties defendant in said complaint, in that the American Fidelity & Casualty Company is improperly joined as a party to a cause of action against the other defendants sounding in tort, as to the commission of which tort it is not alleged said defendant American Fidelity & Casualty Company was a party; that there is a misjoinder of parties defendant, in that the defendants Townsend and Scenic Stages, Inc., are improperly joined as parties defendant in a cause of action in contract upon an alleged policy of insurance alleged to have been executed by the American Fidelity & Casualty Company, and which the complaint affirmatively shows was not executed by either of the defendants Townsend or Scenic Stages, Inc.; "That said complaint fails to state sufficient facts to constitute a cause of action against this defendant for each of the following reasons: [Here follow seven reasons assigned.]"

The trial court on the 12th day of January, 1932, ordered that the demurrers of each of the said defendants be sustained, and further ordered: "That the plaintiff herein shall further plead in this cause if she so desires, within 20 days from and after this date."

On the 30th day of January, 1932, the plaintiff filed a written request for specific rulings on the demurrers, and that said cause be not dismissed under any conditions as to the defendants Townsend and Scenic Stages, Inc., the said request being as follows:

"Comes now the plaintiff in the above entitled and numbered cause, and prays the Court to state specifically his ruling on each ground of demurrer set up by each of the defendants in their respective demurrers, which the Court sustains, and each ground of demurrer, if any which the Court overruled.

"The plaintiff further requests the Court that in case, for any reason, he holds that the defendant, American Fidelity & Casualty Company, is not a proper party defendant, or that no action could be maintained against it in this suit, then that he do not dismiss this action against the other defendants, but only as to the defendant, American Fidelity & Casualty Company."

On the 19th day of February, 1932, the court considered said request, and announced:

"Being of the opinion that the ruling heretofore entered herein on said demurrer is sufficiently explicit;

"It is therefore ordered by the court that the request for specific rulings on demurrer, and the said cause be not dismissed under any conditions as to the defendants Charles T. Townsend and Scenic Stages, Inc., be and the same is hereby in all things denied, to which rulings and each of them the plaintiff excepts."

On the 30th day of January, 1932, there was filed by the plaintiff a notice that plaintiff will not further plead, the said notice being as follows: "Comes now the plaintiff in the above entitled and numbered cause, and states to the court that upon the Court's refusal to announce specific decision on the several grounds of demurrer set out in the several demurrers of the defendants and upon the Court's statement that he will dismiss this cause of action as to all parties, the plaintiff announces that she will not further plead herein, but will stand upon her present pleadings."

On the same day there were filed exceptions to the order of the court sustaining demurrer of the defendants. Among the other exceptions were to the court's failure and refusal to state the ground upon which it decided the demurrer. On the 19th of February there was filed a paper entitled "Amended Exceptions to Order of Court Sustaining Demurrer," which again excepted to the court's failure and refusal to state the ground upon which the court decided the demurrer.

On the 19th day of February, 1932, the plaintiff filed objections and exceptions to the proposed judgment to be entered in this cause, among which objections was:

"That, assuming that there was a misjoinder of causes of action, authorizing the dismissal of said cause as to the defendant, American Fidelity and Casualty Co., the only order that can be entered is a dismissal as to it, and not a judgment on the facts that have never been tried.

"That, assuming that there was a misjoinder of causes of action, judgment against the plaintiff in favor of the defendants, Townsend and Scenic Stages, Inc., should not be entered as though said cause had been tried upon the facts; nor should it be dismissed as to said defendants, because a full and complete cause of action has been set out against them and the court was not authorized to dismiss such cause as to them."

On the said 19th day of February, the court entered judgment: "Now, therefore, on motion of the defendants, it is considered, ordered, and adjudged that the plaintiff, Andrellita Sandoval de Lopez, do have and recover nothing from the defendants, or either of them in this cause, and that said defendants do have and recover of and from the plaintiff, their costs of suit herein, to which the plaintiff in open court objects and excepts upon all of the grounds set out in plaintiff's objections and exceptions to the entry of this judgment herein, and upon all of the grounds upon which her exceptions to the overruling of the two demurrers to plaintiff's amended complaint herein, as set out in written exceptions filed in this cause."

The plaintiff appealed from the judgment, and relies for reversal upon 17 points stated in her brief. Many of these points go to the merits of the various grounds of the demurrers which were sustained by the trial court. Points 7 and 8 present a procedural question which, in our opinion, is of sufficient importance to require a decision. They are thus stated:

Point 7. The plaintiff on request was entitled to specific rulings an the demurrer so that in case it was sustained on the ground of misjoinder of causes of action she could make application for a division of the actions.

Point 8. Where there is a general demurrer on the ground that a complaint does not state facts to constitute a cause of action, and also a special demurrer on the ground of misjoinder of causes of action, and the court sustains the demurrer generally and refuses to state whether or not it was sustained because of misjoinder of causes of action, it will be presumed that the demurrer was sustained because of the insufficiency of complaint.

Point 7 presents the proposition that the plaintiff was at least entitled to be advised as to whether or not the demurrer had been sustained upon the ground of misjoinder of causes of action, in order that, if she were so advised, she could make a motion to divide the actions as provided by section 105-604, Comp. St. 1929. The material portion of said statute is as follows: "If the demurrer be allowed for the reason that causes of action have been improperly united, the court may in its discretion, and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned."

Statutes similar to ours exist in a number of jurisdictions, and have been construed in several. In section 223 of Bancroft's Code of Pleading it is stated: "Where a complaint is demurred to generally and also upon the ground of misjoinder of causes of action, it is the duty of the court, it has been held, to pass upon the latter ground of demurrer even though it holds that one of the causes of action is insufficient; if the court sustains the demurrer upon such ground, it should so state, so as to enable the plaintiff to file several actions, and if it fails to do so, it will be presumed on appeal that the demurrer was sustained because of the insufficiency of the petition."

In Bennett v. Preston, 17 Ind. 291, three causes of demurrer were assigned: (1) Want of sufficient facts to constitute a cause of action; (2) misjoinder of causes of action; (3) misjoinder of defendants, in this, that there were too many defendants. The trial court sustained the demurrer generally and dismissed the suit. On appeal the Supreme Court said: "As to the second ground of demurrer, if valid, it was not cause for dismissal of the suit, but only for the docketing of the causes as...