same form or method is to be or can be used in all actions for whatever purposes brought. The common principle as to form and method is not that all actions shall assume absolutely the same form, nor is it that they shall be governed by any technical rules which separate them into arbitrary classes; it is that they shall all conform to and follow the facts and circumstances which constitute the cause of action, and entitle the parties to relief. It is established, therefore, that a single judicial action, based upon and conforming to the facts and circumstances of each particular case, whatever be the nature of the primary right which they create, must be used for the pursuit of all remedies, legal or equitable. The authorities referred to in the notes show that this doctrine is now adopted in all the States where the reformed procedure prevails, and that there is little variation in the language by which it is expressed. When, however, we shall pass from this statement of the doctrine in the abstract to the application of it in particular instances, as, for example, in questions as to parties, pleading, judgments, the perfect uniformity of judicial opinion and action disappears; but still in the great majority of the States the courts have fairly followed the true intent of the legislation and the correct principle of interpretation.

§ 11. 71. Rule Settled herein. Familiar Rule in Old System. Thus it may be regarded as a settled rule, resulting from the

1 [See cases cited in last preceding note. Zurfluh v. Smith (1902), 135 Cal. 644, 67 Pac. 1089. This was an action for accounting against the administrator of a deceased guardian and for judgment for the amount found due against the sureties on the guardian's bond. Appellants, the sureties, claimed that an equitable action must first be brought to ascertain the amount due and then a second action to obtain a judgment against the sureties for that amount. But the court held it proper to bring one action to decide the entire controversy, saying that it mattered not that part of the relief was equitable and part legal.]

[In Hahl v. Sugo (1901), 169 N. Y. 109, 62 N. E. 135, the court, referring to sections 3339, 481, and others of the code, said: These sections of the Code, and others, which need not be specifically re

ferred to, clearly evince the legislative intent to strip our modern procedure of the cumbrous forms and distinctions which made the practice under the common law and the earlier statutes so burdensome in its details and so uncertain in its results. Upon examining that portion of the Code which deals with actions to recover real property (Ch. 14, tit. 1, art. 1) we find that the old term 'ejectment' has been discarded in the title and it is now entitled 'Actions to recover real property.' This change of name was obviously a part of the plan of the codifiers to reduce our practice to a simple and composite scheme under which all of the rights of litigants, both legal and equitable, so far as they are consistent with each other and affect the same parties, can be tried in one action and be merged in one judgment."]

statutory provision in question, that if a plaintiff has set forth facts constituting a cause of action, and entitling him to some relief, either legal or equitable, his action shall not be dismissed because he has misconceived the nature of his remedial right, and has asked for a legal remedy when it should have been equitable, or for an equitable remedy when it should have been legal.1

Nothing was a more familiar rule in the old system than the one which turned a plaintiff out of court if he had misconceived the nature or form of his action. If he brought an action at law, and on the trial proved a case for equitable relief, or if he filed a bill in equity, and at the hearing showed himself entitled to a judgment at law, he must absolutely fail in that proceeding. It is very plain that this arbitrary and most unjust rule rested wholly upon the ancient notions as to distinctions between legal and equitable actions, and did not rest upon any notions as to the primary rights which the litigant parties sought to maintain. Wherever, therefore, the letter and spirit of the reformed system are followed by the courts, this harsh rule is swept away. A suit does not now fail because the plaintiff has erred as to the form or kind or extent of the remedy he demands.1 A party cannot be sent out of court merely because the facts alleged do not entitle him to relief at law, or merely because they do not entitle him to relief in equity. If the case which he states shows him entitled to any relief, either legal or equitable, his complaint is not to be dismissed because he has prayed for a judgment that is not embraced by the facts. The only inconvenience which a plaintiff can suffer from such an error is, that the trial may, perhaps, be suspended, and the cause sent to another branch of the court, or, as in Kentucky, Iowa, and Oregon, to another docket.2 If a plaintiff had brought his action on the theory that it was based upon an equitable right, and sought an equitable relief, and it turns out to be in effect legal, so that the defendant is entitled to a jury trial, the trial must be had before a jury, and

was tersely and most accurately stated by Sanderson J. in Grain v. Aldrich, 38 Cal. 514, 520: "Legal and equitable relief are administered in the same forum and according to the same general plan. A party cannot be sent out of court merely because his facts do not entitle him to relief at law, or merely because he is not entitled to relief in equity, as the case may be. He can be sent out of court only when upon his facts he is entitled to no relief either at law or in equity." Hamill v. Thompson, 3 Colo. 518, 523; Schilling v. Rominger, 4 Colo. 100; Whiting v. Root, 52 Iowa, 292; Herring v. Neely, 43 Iowa, 157.

1 See notes 2 and 3, p. 665.

2 McCrory v. Parks, 18 Ohio St. 1; Ellithorpe v. Buck, 17 Ohio St. 72. See Dickson v. Cole, 34 Wis. 621, 625.

[See p. 6, note 1. Ming Yue v. Coos Bay R. R. Co. (1893), 24 Ore. 392, 33 Pac. 641: "The distinction between actions and suits is not abolished by our code.

.. When, therefore, the plaintiffs, being in equity, failed to state in their complaint a cause of suit, notwithstanding they may have stated a cause of action, the court had no jurisdiction to retain and try such action, but was bound to dismiss the suit, and leave the plaintiffs to prosecute their action, if they have one at law." See also Small v. Lutz (1899), 34 Ore. 131, 55 Pac. 529.]

not before a single judge sitting as a chancellor; and, when the trial had taken place before the wrong tribunal, the judgment would be reversed, and the cause sent for a new trial in the proper place.1

72. Struggle in Establishing Rule.

Missouri Doctrine.

§ 12. The rule discussed in the foregoing paragraph as to the relation between the facts alleged and the relief asked and granted was not established without a struggle, and has not at all times, and in all the States, prevailed without exception, and perhaps is not even now universally accepted. Many early cases in New York were decided under the influence of the former practice and the ancient notions; and although the Court of Appeals has completely repudiated the doctrine of those adjudications, yet the principles announced by it have not always been followed by the inferior tribunals of the same State.2 In one or two of the States, and especially in Missouri, the ancient rules and doctrines in reference to this subject-matter have been repeatedly asserted, and, until a very recent period, prevailed in the courts, notwithstanding the adoption of the reformed procedure. In Missouri, the judiciary, standing alone in this respect, preserved for a long time the real distinctions between legal and equitable actions as strongly marked as under the former system, and, in fact, insisted upon a rule more strict than that enforced by the English Court of Chancery. The following examples will illustrate this peculiar interpretation of their code by the Missouri courts. In those cases where the plaintiff holds the equitable title to land, while the legal title is in the defendant by

1 Davis v. Morris, 36 N. Y. 569, 571, 572, per Grover J. In this case the New York Court of Appeals laid down, in a formal manner, the rule as to the trial of legal and equitable issues. If the pleadings present both legal and equitable issues, the parties are entitled to a jury, and all the issues must be tried together; that is, there should not be a partial trial before a jury and the residue before another tribunal. If, however, the plaintiff insists upon a trial before the court, and his claim is acceded to, upon the discovery that the action presents issues which must be decided by a jury, the complaint should not be dismissed, but the cause should be sent to the circuit for trial as a

jury cause. Parker v. Laney, 58 N. Y. 469; Richmond v. Dubuque, etc. R. Co., 33 Iowa, 422, 489–491.

2 See Peck v. Newton, 46 Barb. 173, 174.

[See also Draper v. Brown (1902), 115 Wis. 361, 91 N. W. 1001, in which the court, in speaking of the distinction between legal and equitable actions, said: "So pronounced and well preserved is this distinction that this court sustained a demurrer to a complaint in an equitable action, notwithstanding it contained allegations which, if standing by themselves, would constitute an action at law. Denner v. Railroad Co., 57 Wis. 218, 15 N. W. 158."]

means of a fraudulent conveyance, it has been frequently held that the former must first obtain a decree in equity, cancelling the outstanding deed, and must then resort to a separate action. of ejectment to recover possession of the land. A vendee of land has also been required to proceed in two distinct actions, — the first equitable, to compel a specific performance, and the second legal, to obtain possession. The plaintiff was turned over to a second legal action in order to complete his remedy, because, as the court repeatedly insisted, possession of land can never be awarded by a decree in equity.1 The Missouri court has recently receded, in part at least, from this extreme position, and is plainly tending towards a complete harmony with the doctrines which are accepted in other States.2 A simple criterion has been suggested by which to determine the nature of the action. If the facts alleged in the complaint or petition would entitle the plaintiff to both legal and equitable relief, the prayer for judgment—that is, the nature of the remedy demanded- might be a certain test by which the character of the suit should be known. This suggestion has not, however, been followed in other cases.

1 Meyers v. Field, 37 Mo. 434, 441; Maguire v. Vice, 20 Mo. 429; Curd v Lackland, 43 Mo. 199; Wynn v. Cory, 43 Mo. 301; Gray v. Payne, 43 Mo. 203; Bobb v. Woodward, 42 Mo. 482, 487; Peyton v. Rose, 41 Mo. 257, 262; Gott v. Powell, 41 Mo. 416; Moreau v. Detchemendy, 41 Mo. 431; Walker's Adm. v. Walker, 25 Mo. 367; Reed v. Robertson, 45 Mo. 580; Rutherford v. Williams, 42 Mo. 18, 23; Fithian v. Monks, 43 Mo. 502, 517; Magwire v. Tyler, 47 Mo. 115,

127.

2 Henderson v. Dickey, 50 Mo. 161, 165, per Wagner J. Followed in numerous recent cases; see Paddock v. Somes, 102 Mo. 226.

[See Hollister v. Bell (1900), 107 Wis. 198, 83 N. W. 297, in which it is said: "The idea that a plain action at law, as to which there is an entire failure of proof, can be turned into an action in equity and a recovery be had such as that jurisdiction in any event can afford on the facts, does not find support in the decisions of this If an action be brought and tried as an action at law, such relief only is ob

court.

tainable as is afforded on the facts in that form of action." Seals v. Augusta Ry. Co. (1898), 102 Ga. 817, 29 S. E. 116; Hamilton v. Mandle (1898), 103 Ga. 788, 30 S. E. 658; Field v. Brown (1896), 146 Ind. 293, 45 N. E. 464: "There may properly be joined causes or defences, one of which is triable by the court and the other by a jury."]

8 Gillett v. Treganza, 13 Wis. 472, 475, per Dixon C. J. Followed in Lowber v. Connil, 36 Wis. 176; Harrall v. Gray, 10 Neb. 186.

[Topping v. Parish (1897), 96 Wis. 378, 71 N. W. 367. But in Stephens v. Harding (1896), 48 Neb. 659, 67 N. W. 746, the court said: 66 Under our system of pleading the nature of an action is determined not alone by the prayer for relief, but also from the character of the facts alleged." So, also, Lett v. Hammond (1899), 59 Neb. 339, 80 N. W. 1042; Irwin v. Richardson (1894), 88 Wis. 429, 60 N. W. 786; United Coal Co. v. Canon City Coal Co. (1897), 24 Colo. 116, 48 Pac. 1045; Imperial Shale Brick Co. v. Jewett (1901), 169 N. Y. 143, 62 N. E. 167.]