Penter v. Staight

• Citation: 25 P. 469,1 Wash. 365
• Parties: PENTER v. STAIGHT ET AL.
• Decision Date: 14 November 1890
• Court: United States State Supreme Court of Washington

25 P. 469

1 Wash. 365

PENTER v. STAIGHT ET AL.

Supreme Court of Washington

November 14, 1890

Appeal from superior court, Whatcom county.

S M. Bruce, for appellant.

Dorr & Finch, for appellees.

STILES J.

The complaint contained the separate statement of two improperly joined causes of action, in the first of which $200 was demanded, and in the second $500. Demurrers were interposed on the ground- First, that two causes of action had been improperly joined; and, secondly, that the complaint did not state a cause of action. The court below on the hearing of these demurrers, disregarded the first ground of demurrer, but ruled on the second, to the effect that the first cause of action, as pleaded, was sufficient, but that the second was not. We presume that the failure to pass upon the demurrer for misjoinder was upon the theory that, as the facts stated in the second cause of action were not sufficient to constitute a ground of complaint, there was no misjoinder, and it was therefore not necessary to rule upon that point. This was clear error. The demurrer upon this ground should have been sustained, and the plaintiffs allowed to amend by selecting which of the causes of action they would stand upon, and dismissing as to the other. The error thus committed would not be very material in this case were it not that the court's action has opened the way to a motion to dismiss this appeal, on the ground that this court has no jurisdiction under that clause of the constitution (article 4, § 4) which restricts it to cases of this class, where the original amount in controversy is above $200. In this instance, the "original amount in controversy" was the amount demanded,-$700. But the appellees contend that, inasmuch as the second cause of action contained an allegation of damage in the sum of $500, and the first cause of action a like allegation of damage in $200, the act of the court in sustaining the demurrer to the second cause, ipso facto, reduced the amount in controversy to exactly $200. The demand, however, remained $700, and there was no amendment making it less. Inasmuch as the allegations of the first cause of action tended to show a right in the plaintiffs to compensation for services rendered of the value of $200, for which demand had been made before suit, the proper judgment would have been $200, with interest thereon from the date of the demand until the judgment,-something more than $200. Therefore, it was proper that the prayer of the complaint on that cause of action should be more than the bare principal, which would have given this court jurisdiction.

There is another and an equally important ground, however, upon which we must sustain this appeal. It is claimed in the brief of the appellees that, upon the demurrer to the second cause of action being sustained, that cause of action was abandoned, and no longer formed a part of the controversy. Were that so, and had an amended complaint been filed, demanding only $200, we should hold with the appellees. But on referring to the record, we find that not only was there no abandonment, but that the order sustaining the demurrer distinctly shows the plaintiffs excepting to the ruling of the court, thus preserving to the plaintiffs the right to appeal from that judgment. True, the trial went on upon the first cause of action, and plaintiffs were apparently satisfied with their recovery; but, had the judgment been against them, it was quite in their power to appeal to this court, giving it jurisdiction of the whole amount of $700, on account of the alleged error of the court in sustaining the demurrer. If there would be jurisdiction for one side, there must be jurisdiction for the opposite side. The notice of appeal was given in open court, and was in accordance with the act of 1883. No notice whatever appears to have been given to the plaintiffs of the settlement of the statement of facts, nor do they or their...