McArthur v. Moffett

• Decision Date: 15 November 1910
• Citation: 143 Wis. 564,128 N.W. 445
• Parties: MCARTHUR v. MOFFETT ET AL.
• Court: Wisconsin Supreme Court

143 Wis. 564

128 N.W. 445

MCARTHUR

v.MOFFETT ET AL.

Supreme Court of Wisconsin.

Nov. 15, 1910.

Appeal from Circuit Court, Douglas County; A. J. Vinje, Judge.

Action by Peter McArthur against James Moffett and others. A demurrer to the complaint was overruled, and defendants appeal. Affirmed.C. R. Fridley, for appellants.

Grace & Hudnall, for respondent.

WINSLOW, C. J.

The complaint contains two counts: The first states a statutory cause of action under section 3186, St. 1898, to quiet plaintiff's title to a number of tracts of unoccupied land to which the defendants “make some claim.” The second states a cause of action at law to recover damages for trespass and the cutting of timber on said lands prior to the commencement of the action. A demurrer to this complaint for improper joinder of causes of action was overruled, and the defendants appeal.

The exact question presented is whether a statutory cause of action to quiet title to land and a cause of action for trespass on the same land “arise out of the same transaction or transactions connected with the same subject of action” within the meaning of subdivision 1, § 2647, St. Wis. 1898. These words are found in the first subdivision of that section of our Code, which authorizes the joinder of different causes of action in the same complaint. They were first introduced into the New York Code by amendment in 1852. They were incorporated into our original Code in 1856, and have remained there unchanged since that date. They are also to be found substantially unchanged in the Codes of nearly if not quite all of the code states. It would seem that at this late date there ought to be little doubt as to their true scope and meaning. Court and text-writers have been busy for more than half a century drafting and redrafting definitions of the words “transaction” and “subject of action” as new cases have presented themselves, but, on the whole, it may well be doubted whether the discussions have resulted in clarity of thought. The words are generalto the last degree; indeed, they must be so for they are intended to provide for and apply to the myriad difficulties that may arise between man and man in all kinds of situations, and no words of limited or narrow meaning could be used.

The difficulty lies, not merely in the unfortunate paucity and poverty of human language, but in the equally unfortunate incapacity of the human mind to appreciate in advance and provide for future difficulties arising out of new situations and complications. In view of what has been said, it may seem somewhat presumptuous for us to enter upon a new discussion of the subject or to attempt to make new definitions, and thus perhaps only make confusion worse confounded. We would never willingly “darken counsel by words without knowledge,” and we hope not to do so now, but we feel that the case demands a careful re-examination of the meaning of the words in question in the light of all that the various courts and text-writers have said about them. It may be that we shall add nothing useful to the discussion, yet it seems as though every treatment of the subject by an intelligent mind viewing it from a new standpoint and as applied to new circumstances and aided by the experience and suggestions of previous investigators should be helpful. Section 143 of the original New York Code of 1848 (chapter 379, Laws New York 1848) provided for the joinder of several causes of action in the same complaint, but it contained no provision of this kind. It simply provided that “the plaintiff may unite several causes of action in the same complaint where they all arise out of (1) contract express or implied,” and then followed six subdivisions or classes of actions, the section closing with this provision: “But the causes of action, so united, must all belong to one only of these classes, and must equally affect all the parties to the action, and not require different places of trial.” It will be noticed that the section contains no provision expressly allowing the joinder of legal and equitable causes of action, nor does it contain the provision now under consideration, namely, the provision allowing joinder where the different causes “arise out of the same transaction or transactions connected with the same subject of action.”

The cold, not to say inhuman, treatment which the infant Code received from the New York judges is matter of history. They had been bred under the common-law rules of pleading and taught to regard that system as the perfection of logic, and they viewed with suspicion a system which was heralded as so simple that every man would be able to draw his own pleadings. They proceeded by construction to import into the Code rules and distinctions from the common-law system to such an extent that in a few years they had practically so changed it that it could hardly be recognized by its creators. Although the Code by its terms abolished all existing forms of pleading and prescribed one general form of pleading which should be used in all actions, the courts early decided that the distinctive features of pleadings at law and in equity still remained, and so they easily held that what was formerly called a cause of action at law could not be joined with what was formerly called a cause of action in equity. To meet and counteract this narrow and illiberal construction of the law, the amendments of 1852 (Laws 1852, c. 392) were adopted providing expressly that legal and equitable causes of action might be joined, provided they both belonged to one of the seven classes, and further creating a new class of joinable actions, to wit, those which arise out of the “same transaction or transactions connected with the same subject of action.” It is very clear that the legislative intent in making these amendments was to permit and encourage the joinder of causes of action which could reasonably be said to involve kindred rights and wrongs, and thus settle such kindred rights and wrongs in one proceeding, rather than to require them to be settled by piecemeal in different actions with much greater expenditure of time and money.

Some other conclusions seem equally clear concerning these amendments. They were all intended to accomplish some definite purpose, some change in the existing condition of things. They were not inserted to fill up space or for rhetorical effect. The word “transaction” was intended to define one thing, and the words “same subject of action” another and different thing, and both were intended to define a different thing from the words “cause of action.” To hold that any two of these three terms mean the same thing is to make nonsense of the whole phrase. Again, it is very apparent that the dominant idea was to permit joinder of causes of action legal or equitable in case there was some substantial point of unity between them. It was contemplated evidently that this point of unity might be very near to the causes of action--i. e., that both causes of action might arise directly out of the same event or affair (called a “transaction” in the statute) in which case they were joinable--and it was also contemplated that the point of unity might be further off in the chain of events--i. e., that, while the two causes of action had their immediate inception in different “transactions,” still, if these different transactons were both connected with one fundamental matter or thing or combination of matters or things called the “subject of action,” there was still a sufficient element of unity to justify their being joined in one action. Now it is manifest that the principal difficulty here consists in the meaning of the term “subject of action.” The words “cause of action” and “transaction” present no very serious difficulties, but “subject of action,” as before said, is a very general and comprehensive term which must be applied to very many and very diverse situations. It is relatively easy to give it a definition in terms equally general, for instance one can say that it is some fundamental matter or thing common in greater or less degree to each cause of action and without the prior existence of which the cause of action itself could have no existence, but this definition affords little help in applying the words to a concrete case. The definition is as general and vague as the words which it is supposed to define.

The difficulties surrounding the accurate definition of these words were at once appreciated by the courts of New York. Judge Comstock, in 1858, said of the amendment of 1852: “Its language is, I think, well chosen for the purpose intended, because it is so obscure and so general as to justify the interpretations which shall be found most convenient and best calculated to promote the ends of justice. It is certainly impossible to extract from a provision so loose and yet so comprehensive any rules less liberal than those which have long prevailed in courts of equity.” N. Y. & N. H. R. Co. v. Schuyler et al., 17 N. Y. 592. In 1876 Chief Justice Church said: “This language is very general and very indefinite. I have examined the various authorities upon this clause, and am satisfied that it is impracticable to lay down a general rule which will serve as an accurate guide for future cases. It is safer for courts to pass upon the question as each case is presented. To invent a rule for determining what the ‘same transaction’ means, and when a cause of action shall be deemed to arise out of it, and what the same subject of action means, and when transactions are to be deemed connected with it, has taxed the ingenuity of many learned judges, and I do not deem it necessary to make the effort to find a solution of these questions.” Wiles v. Suydam, 64 N. Y. 173. The well-known allusion to that unfortunate class of people who rush in where “angels fear to tread” may occur to the irreverent mind at this point, but we feel compelled to proceed with our investigations...