Town of Hazlehurst v. Cumberland Telephone & Telegraph Co.

• Decision Date: 15 February 1904
• Court: Mississippi Supreme Court
• Parties: TOWN OF HAZLEHURST v. CUMBERLAND TELEPHONE AND TELEGRAPH COMPANY

35 So. 951

83 Miss. 303

TOWN OF HAZLEHURST v. CUMBERLAND TELEPHONE AND TELEGRAPH COMPANY

Supreme Court of Mississippi

February 15, 1904

FROM the circuit court of Copiah county. HON. DAVID M. MILLER Judge.

The town of Hazlehurst, appellant, was plaintiff in the court below; the telephone company, appellee, was defendant there. From a judgment sustaining a general demurrer to the declaration and dismissing the suit, plaintiff appealed to the supreme court. The demurrer assigned a misjoinder of causes of action, among other grounds, and when it was sustained the plaintiff declined to amend the declaration.

Affirmed.

Robert B. Mayes, for appellant.

It will be noted by the court that the declaration in this cause contains two counts, in one of which the defendants are sued for a breach of their contract with the town; and in the second count, they are sued for the value of the use of the streets of the town without reference to contract. The object of bringing this suit in this way is: First, to get damages for the breach of contract in case the court holds that the contract was a valid one; and second, in case the court holds that the contract is not a valid contract, then to obtain a reasonable sum for the use of the valuable privileges thus enjoyed by the defendant company.

It is urged by counsel for appellee in his demurrer that the declaration shall be dismissed for the reason that these two counts cannot be joined, and in support of this proposition he cites the case of Elder v. Hilzheim, 35 Miss 231. It will be seen on an examination of this decision in the first place that the case does not support the contention of counsel, and in the second place, that that case was decided in 1800 before the passage of the code of 1892 (and code of 1871 prior to that time), abolishing all forms of action. All that is necessary in a declaration, according to Code 1892, § 671, is that the declaration contain a statement of the facts constituting the cause of action, and if the declaration, or any part of it, whether it be continued in one count, or two counts, on the whole, shows a good cause of action, then it is no objection what the form may be or how many counts be inserted in it. As our court has aptly expressed it in the case of Miller v. Wesson, 58 Miss. 831: "Each of several counts of a declaration is as distinct from the others as if in a separate declaration, except as it may refer to another in express terms, and the several counts must be tried as if they were independent suits." Again, it is said in § 671 of the code of 1892: "It shall not be an objection to maintaining any action that the form thereof should have been different." It will be observed that the case in 35 Miss. relied on by counsel in support of his contentions, in the first place, does not sustain it, and in...