Uihlein v. Rosenberg

• Decision Date: 11 October 1949
• Parties: UIHLEIN et al. v. ROSENBERG et al.
• Court: Wisconsin Supreme Court

Page 389

39 N.W.2d 389

255 Wis. 412

UIHLEIN et al. v. ROSENBERG et al.

Supreme Court of Wisconsin.

Oct. 11, 1949.

Bender, Trump & McIntyre, Milwaukee, for appellant Lavo Co. of America.

Wolfe, O'Leary & Kenney and Z. F. O'Leary, Milwaukee, for appellants Louis Rosenberg and Rose Manor Realty Co.

Shaw, Muskat & Paulsen, Milwaukee (John F. Zimmermann, Milwaukee, of counsel), for respondents.

BROADFOOT, Justice.

The defendant Lavo Company demurred to the amended complaint as amended on two grounds, to-wit: (1) Misjoinder of causes of action; (2) failure to state facts sufficient to constitute a cause of action. The defendants Louis Rosenberg and Rose Manor Realty Company demurred separately upon the same grounds.

The defendants contend that the five alleged fraudulent transfers described above are five separate and distinct causes of action, each of which affects some of the defendants but that none of them affects all of the defendants, and that this results in a misjoinder of causes of action.

The correct rule is stated in Simon v. Weaver, 143 Wis. 330, 127 N.W. 950, 954:

'It is, however, a misconception of the complaint before us to say that it states more than one cause of action. True, a number of wrongful acts are set out, and different forms of relief are demanded, but that is only alleging the various ways in which the fraudulent scheme was consummated, and demanding appropriate relief for each separate wrong flowing therefrom. It is not alleging separate causes of action. As we said by this court in Zinc Carbonate Co. v. First Nat. Bank, 103 Wis. 125, 139, 79 N.W. 229, 233, 74 Am.St.Rep. 845:

"There is but one subject of action--the conspiracy to defraud and its consummation to the damage of plaintiff. All the allegations of fact are parts of the presentation of that one subject. The test of whether there is more than one cause of action stated or attempted to be stated in a complaint is not whether there are different kinds of relief or objects sought, but whether there is more than one primary right sought to be enforced or one subject of controversy presented for adjudication.'

'To the same effect are Gager v. Marsden, 101 Wis. 598, 77 N.W. 922; Adkins v. Loucks, 107 Wis. 587, 83 N.W. 934; Herman v. Felthousen, 114 Wis. 423, 90 N.W. 432. In these cases the question has been so fully discussed, and the distinction between alleging separate causes of action and alleging one subject of wrong out of which separate wrongs may flow...