demur on the ground that the causes of action are improperly united.91

83115a. The same continued. Where it appears from the face of the complaint that there is a misjoinder of causes of action, the objection must be taken by demurrer, and can not be raised for the first time on appeal.92 Such misjoinder can not be remedied by a motion to strike out part of the pleading.93 A general demurrer to a whole complaint which contains two counts or two causes of action is properly sustained, where neither of the counts states a cause of action, and it is unnecessary that the demurrer in such case should refer to either of the counts separately.94 A cause of action for costs incurred in having to bring suit against the defendant for specific performance of an agreement to reconvey certain premises; a cause of action based upon alleged fraud, malice, and oppression of the defendant, and a cause of action arising from the breach of the defendant's written covenant of warranty of property conveyed to the plaintiff, can not be united. And a complaint which unites and mingles together such causes of action is demurrable, on the ground that several causes of action are improperly united. But in a suit in equity to set aside a money judgment, the complaint stated a variety of circumstances differing in their nature, but connected with and tending to establish the alleged fraud, and it was held that the complaint was not demurrable for a misjoinder of causes of action.96

§ 3115b. The same — waiver of objections. Objections on the ground that several causes of action have been improperly united, as well as on the ground of misjoinder of parties, must be taken by demurrer or otherwise in the trial court, or they are to be deemed waived. And this rule applies as well to actions for forcible entry and detainer as to other civil actions.97 A demurrer on the ground of misjoinder of causes of action is waived by pleading over.98 Error in overruling a demurrer for

91 Hillman v. Hillman, 14 How. Pr. 456.

92 Roberts v. Eldred, 73 Cal. 394; Keys v. Morrison, 3 Col. App. 441; Moore v. Vickers, id. 443; Brahoney v. Railroad Co., 14 Col. 27. 93 Eversdon v. Mayhew, 85 Cal. 1.

94 Churchill v. Pacific Imp. Co., 96 Cal. 490.

95 Cosgrove v. Fisk, 90 Cal. 75.

96 Raynor v. Mintzer, 67 Cal. 159.

97 Farncomb v. Stern, 18 Col. 279.

98 Schoelkopf v. Leonard, 8 Col. 159; see § 3120, post.

misjoinder of causes of action is immaterial if no injury resulted therefrom.99 Where two causes of action are improperly joined, failure of the court to pass upon a demurrer on that ground is not cured by sustaining a demurrer to one of the paragraphs for want of sufficient facts to state a cause of action.100

§ 3116. Fraudulent conveyance. The plaintiff having a claim against A., brought suit against him to enforce the claim, and, in the same action, sought to set aside a conveyance of real estate from A. to B., on the ground that it was executed in fraud of the creditors of A., and made B. a party to the suit; it was held, there having been no objection taken, either by demurrer or answer, on the ground of an improper joinder of several causes of action, that the plaintiff was entitled to contest the validity of the conveyance from A. to B.101 The demurrer must be entirely sustained, or fail to the whole extent to which it is applied.102

1

3117. Husband and wife. There is no misjoinder of actions in an action against husband and wife to foreclose a mortgage executed by husband and wife to secure a note given by the husband alone, where the prayer of the complaint was for judgment against the husband, and a decree against the husband and wife for a sale of premises.103

§ 3118. Injuries to person and property. Injuries to person, resulting from injuries to property, if joined with the latter, is not a misjoinder of causes of action in New York.104 But the practice differs in California, where such would be a mis

99 Angell v. Hopkins, 79 Cal. 181.

100 Penter v. Staight, 1 Wash. St. 365.

101 Macondray v. Simmons, 1 Cal. 393.

102 Peabody v. Mutual Ins. Co., 20 Barb. 342; People v. Mayor of New York, 17 How. Pr. 57; Wait v. Ferguson, 14 Abb. Pr. 379; Cook v. Chase, 3 Duer, 643. Mandamus and injunction.- Although the complaint in an action may be an attempt to improperly join a cause of action for mandamus and one for injunction, yet a demurrer for misjoinder will not lie, provided the complaint, which is not separated into separate counts or causes of action, but is a continuous statement of facts, states a good cause of action for the injunction and shows no ground for relief by mandamus. Times Publishing Co. v. Everett, 9 Wash. St. 518; 43 Am. St. Rep. 865. 103 Rollins v. Forbes, 10 Cal. 299.

104 Grogan v. Lindeman, 1 Code R. (N. S.) 287.

107

joinder and would be demurrable. Especially is this the case unless it arises out of the same transaction.105 Damages for a personal tort can not be united with claim for equitable relief.10 So a claim for possession of real property and damages for its detention can not be united with a claim for consequential damages. So a claim for damages for damages resulting from a trespass quare clausum fregit can not be joined with ejectment. So where several matters are united against one defendant, perfectly distinct and unconnected, or where relief is demanded against several defendants of matters of a distinct and independent nature. 108

109

§ 3119. Joint demurrer. If complaint state a cause of action against one, or some of several defendants, a joint demurrer can not be sustained.1 But where the complaint disclosed a separate cause of action against each defendant, a joint demurrer for misjoinder was sustained.110

§ 3120. Objections, when and how must be taken. Objections to the misjoinder of causes of action should be taken by demurrer or answer, or they are deemed waived.111 Misjoinder of actions can not be taken advantage of on general demurrer.112 A misjoinder of causes of action in a complaint can not be taken advantage of, unless especially assigned by a demurrer.113 Where a plaintiff brought eleven qui tam actions for penalties against the same defendant, who demurred especially to each declaration, and the plaintiff joined in demurrer, a motion that

105 McCarty v. Fremont, 23 Cal. 197.

106 Mayo v. Madden, 4 Cal. 27.

107 Bowles v. Sacramento Turnpike Co., 5 Cal. 224.

108 Wilson v. Castro, 31 Cal. 420; see § 3109, ante.

109 People v. Mayor of New York, 28 Barb. 240; Eldridge v. Bell, 12 How. Pr. 549; Phillips v. Hagadon, id. 17; Woodbury v. Sackrider, 2 Abb. Pr. 402; Asevado v. Orr, 100 Cal. 293; Rogers v. Schulenburg, 111 id. 281.

110 Hess v. Buffalo & Niagara Falls R. R. Co., 29 Barb. 391.

111 Jacks v. Cooke, 6 Cal. 164; Marius v. Bicknell, 10 id. 217; Cal. Code Civ. Pro., § 434; Jones v. Hughes, 16 Wis. 683; Barlow v. Leavitt, 12 Cush. 483; Youngs v. Seely, 12 How. Pr. 395; White v. Delschneider, 1 Oreg. 254; § 3115, ante.

112 Ruhling v. Hackett, 1 Nev. 360.

113 Haverstick v. Trudel, 51 Cal. 431. Objections to a complaint which are grounds of special demurrer are waived where the demurrer is general and no special grounds are specified therein. Daggett v. Gray, 110 Cal. 169.

one demurrer be argued, and that proceedings in the other cases be stayed to abide the event of the one argued, was denied. party bringing a multiplicity of suits must take the responsibility of meeting them in the usual way.114 If two causes of action have been improperly joined without properly stating them, the objection must be taken by demurrer, or it is considered waived.115 Where there is a misjoinder of causes of action, any defendant may demur; but where there is a joinder of improper parties as defendants, the defendant or defendants improperly joined can alone demur.116 Where the parties joined as plaintiffs are all interested in the principal question raised in the bill, and the issues tendered are simple, and a multiplicity of suits may be avoided, a demurrer for multifariousness will not be sustained.117

§ 3121. Penalties. The plaintiff can not unite in his complaint two or more causes of action for penalties incurred by a toll gatherer for demanding and receiving too much toll, even if they are separately stated.118

§ 3122. Recognizance. Suit was brought on a recognizance given before a justice for the appearance of defendant S. to answer a criminal charge. The complaint, after setting out the cause of action on the recognizance, avers that S., to secure his sureties, executed a deed of trust to T. of certain warrants and money. This deed provides that in case the recognizance be forfeited and the sureties become liable thereon, the trustee is to apply the property to the payment, so far as it will go, of the recognizance. The complaint asks to have this property so applied. It was held that a demurrer for misjoinder of causes of action lies, that the trust deed has nothing to do with the liability of the sureties.119

§ 3123. Sheriff, action against. Where in an action against the sheriff the plaintiff's declaration contained one count in case 114 Ferrett v. Atwill, 1 Blatchf. 151.

115 Fuhn v. Weber, 38 Cal. 636; but see § 3113, ante. Where distinct causes of action, upon a charge of slander, are not separately stated, or not stated with sufficient certainty, these defects are waived by a general demurrer. Clugston v. Garretson, 103 Cal. 441. 116 Ashby v. Winston, 26 Mo. 210.

117 People v. Morrill, 26 Cal. 360; Garner v. Wright, 28 How. Pr. 92.

118 Brown v. Rice, 51 Cal. 489.

119 People v. Skidmore, 17 Cal. 260.

against him as sheriff, for so negligently executing the writ as to cause plaintiff to lose his debt, and another in trover and conversion, against him individually for the value of the goods, such joinder is not error, for they are both actions on the case, the plea and judgment being the same in each; and the demurrer of the defendant to the declaration, on the ground of misjoinder, was properly overruled.120 But where a complaint against a sherifi and his official bondsmen alleges only a cause of action against him as a trespasser, and against his sureties as signers of the bond, and not otherwise, the complaint is demurrable.121

§ 3124. Trespass. In an action for trespass, where the value of the property and damages were claimed, it was held that demurrer would not lie for misjoinder of actions.122

§ 3125. On the ground that the complaint does not state sufficient facts to constitute a cause of action.

[TITLE.]

Form No. 681.

The defendant demurs to the complaint filed in this action, and for cause of demurrer alleges:

That the complaint does not state facts sufficient to constitute a cause of action.

§ 3126. Action premature. defendant may demur for insufficient facts.123 The court will not presume, in support of the demurrer, that the debt was not due when action was commenced.1 124 In an action on a bond dated May 10, 1853, conditioned for the payment of a sum "in two years from the 1st day of April last, with annual interest," a demurrer, on the ground that no cause of action was stated, was tried in June, 1854. It was held that as interest was due before the time of trial, the plaintiff was entitled to judgment

Where the action was premature,

120 Patterson v. Anderson, 40 Penn. St. 359; 80 Am. Dec. 579. 121 Ghirardelli v. Bourland, 32 Cal. 585.

122 Tenderson v. Marshall, 3 Cal. 440; see Dunton v. Niles, 95 id. 494.

123 Harvey v. Chilton, 11 Cal. 114; Hicks v. Branton, 21 Ark. 186; and see Selz v. Tucker, 10 Utah, 132.

124 Meynard v. Talcot, 11 Barb. 569. Greater latitude of presumption may be indulged to sustain a complaint when the objection that it does not state a cause of action is taken for the first time at the trial, after an issue of fact has been taken upon it by answer, than when the same objection is taken by demurrer. Johnson v. Burnside, 3 S. Dak. 230.