Slayton v. Davis

• Decision Date: 09 October 1911
• Citation: 81 A. 232,85 Vt. 87
• Parties: SLAYTON v. DAVIS et al.
• Court: Vermont Supreme Court

81 A. 232

85 Vt. 87

SLAYTON

v. DAVIS et al.

Supreme Court of Vermont. Orleans.

Oct. 9, 1911.

Exceptions from Orleans County Court; Zed S. Stanton, Judge.

Action by Luman J. Slayton against Nellie S. Davis and another. Demurrers to the several counts of the declaration were overruled, and defendants excepted. Affirmed and remanded.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Grout & Grout, for plaintiff. J. W. Redmond and Young & Young, for defendants.

POWERS, J. This declaration contains two counts. It is agreed that the first, the substance of which is that the defendants assaulted the plaintiff and seized him and cast him into prison, is in trespass. The form of the second, which alleges, in substance, that the defendants, without cause, maliciously sued out a body writ against the plaintiff, and caused him to be arrested thereon and cast into prison, all for the sole purpose of forcing him to discontinue a certain action of trover which he had brought against the defendants, and which was then pending, is in dispute; the plaintiff claiming that it is case for abuse of process, and the defendants insisting that it is case for malicious prosecution. The parties agree, however, that the second count, whatever it may be in form, cannot be joined with the first, unless the two are for the same cause of action, within the meaning of P. S. 1503, which provides that counts in trespass may be joined with counts in trespass on the case, including trover, if for the same cause of action. The defendants demur to the declaration specifying as cause thereof the alleged misjoinder of the counts, and this raises the only question submitted.

Counts for malicious prosecution and for abuse of process are clearly distinguishable. They are, however, so similar in character that they stand alike, when joined with a count in trespass and met by a demurrer for misjoinder. So we do not deem it necessary to determine which of the parties correctly classifies this second count, in order to decide whether it is for the same cause of action covered by the first. An allegation of identity in such cases is not required (Templeton v. Clogston, 59 Vt. 628, 10 Atl. 594), nor is it always controlling. Sawyer v. Childs, 83 Vt. 329, 75 Atl. 886. All that is or should be required is that, from the declaration itself, the court shall be satisfied that the several counts are for the same cause of action. Templeton v. Clogston, supra. The "cause of action" referred to in the statute is the fact or facts which give rise to a right of action—the matter for which an action may be brought. Joinder of counts under this statute is not to be tested by the gist of the respective counts joined, but by the gravamen thereof. If the substance of the claim made under the different counts is the same, identity is sufficiently established, though the gist of one differs from that of the others. Thus in Hagar v. Brainerd, 44 Vt. 294, two counts in trespass qua. clau. were joined with one in case. The court below overruled the defendant's motion to dismiss the third count for a misjoinder. This ruling was approved by this court, on the ground that all the counts were to recover for the removal of the same dwelling house and underpinning stones, and...