addition to this privilege of voluntary amendment accorded to the parties, the court itself may, on motion, amend a pleading, or permit it to be amended, at any stage of the cause, before and in most of the States, after the judgment, on such terms as may be proper. This authority is conferred in very broad terms, with the limitation, however, that the cause of action or defence shall not be substantially changed.1 Finally, all the codes contain the following most righteous provision, which, as appears by their reported decisions, is treated by the courts of some States as though it were a legislative command binding upon them: "The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect." 2 same, except in respect to the time within which the amendment can be made; they all permit one such amendment by the party of his own pleading, as a matter of course. 1 New York, § 173 (723); California, § 473; North Carolina, § 132. [Arizona, Rev. St., 1901, § 1288, at any stage of the action; Arkansas, Sand. & Hill's Dig., § 5769, at any time; Colorado, Code, 1890, § 75, without limitation as to time; Connecticut, Gen. St., 1902, § 639, at any time, § 645,- after default before final judgment, § 646, — from contract to tort, and vice versa, § 647, from equitable to legal cause, and vice versa; Idaho, Code Civ. Pro., 1901, § 3241, without limitation as to time; Indiana, Burns' St., 1901, § 399, at any time; Iowa, Code, 1897, § 3600, at any time; Kansas, Code, 1901, § 139, before or after judgment; Kentucky, Code, 1895, § 134, at any time; Minnesota, St., 1894, § 5266, before or after judgment; Missouri, Rev. St., 1899, § 657, at any time before final judgment, § 660, — after final judgment; Montana, Code, 1895, § 774, without limitation as to time; Nebraska, Code, 1901, § 144, either before or after judgment; Nevada, Comp. Laws, 1900, § 3163, without limitation as to time; North Dakota, Rev. Codes, 1899, § 5297, before or after judgment; Ohio, Bates' St., § 5114, before or after judgment; Oklahoma, St., 1893, § 4017, before or af ter judgment; Oregon, Hill's Laws, § 101, at any time before trial, § 102, - allowing court to enlarge time limited by code; South Carolina, Code, 1893, § 194, before or after judgment; South Dakota, Ann. St., 1901, § 6144, before or after judg ment; Utah, Rev. St., 1898, § 3005, without limitation as to time; Washington, Bal. Code, § 4953, without limitation as to time; Wyoming, Rev. St., 1899, § 3588, before or after judgment; Wisconsin, St., 1898, § 2830, at any stage of the action, before or after judgment.] The following is the clause as found in all the codes substantially, and exactly in most of them. The court may at any time "amend any pleading or proceeding by adding or striking out the name of any party; or by correcting a mistake in the name of any party, or a mistake in any other respect; or by inserting allegations material to the case; or, when the amendment does not substantially change the claim or defence, by conforming the pleading or proceeding to the facts proved." 2 Nebraska, § 145; Kansas, § 140; Oregon, § 104; North Carolina, § 135. [Arizona, Rev. St., 1901, § 1293; Arkansas, Sand. & Hill's St., § 5772; California, § 475, somewhat more specific; Colorado, Code, 1890, § 78; Idaho, Code Civ. Pro., 1901, § 3243; Indiana, Burns' St., 1901, § 401; Iowa, Code, 1897, § 3601; Kentucky, Code, 1895, § 134; Minnesota, St., 1894, § 5269; Missouri, Rev. St., * § 330. 436. Order of Proposed Treatment. In the important discussions based upon the foregoing statutory provisions, which will form the substance of the present chapter, the natural and scientific order of treatment would undoubtedly lead me first to develop the general and essential principles upon which the whole reformed theory of pleading is based, and afterwards to apply these principles in determining the rules that regulate the matter and form of the plaintiff's complaint or petition. Scientific method must, however, be sometimes abandoned from considerations of convenience and expediency; and such a course seems to be proper in this instance. In attempting to obtain a correct notion of the essential principles and doctrines of the new system, it will be necessary to fix the meaning of certain terms and phrases used in all the codes; and it so happens, from the course of judicial decisions involving the question, that these very terms and phrases can be most advantageously examined, and most easily interpreted, in connection with the particular subject of "The Joinder of Causes of Action." The entire discussion will, therefore, be rendered simpler, and useless repetition will be avoided, by adopting the arrangement thus suggested. In pursuing this plan, the subject-matter of the chapter will be separated into the following general divisions: (1) The joinder of different causes of action in one proceeding; (2) the essential principles which lie at the foundation of the reformed system of pleading; (3) the general doctrines and practical rules deduced from these principles, which determine and regulate both the external form and the substance of the plaintiff's complaint or petition. 1899, § 659; Montana, Code, 1895, § 778; Nevada, Comp. Laws, 1900, § 3166; New York, Code Civ. Pro., § 721, enumerating twelve classes of defects which shall not effect the judgment; North Dakota, Rev. Codes, 1899, § 5300; Ohio, Bates' St., § 5115; Oklahoma, St., 1893, § 4018; South Carolina, Code, 1893, § 197; South Dakota, Ann. St., 1901, § 6147; Utah, Rev. St., 1898, § 3008; Washington, Bal. Code, § 4957; Wisconsin, St., 1898, § 2829; Wyoming, Rev. St., 1899, § 3589.] The foregoing are all the general provisions relating to the plaintiff's pleading, or to the theory of pleading as a whole: those relating to the defendant's pleading, to the reply, and to the joinder of causes of action, are given hereafter. In a few of the codes, especially in those of Iowa, Indiana, and Missouri, there are certain special clauses prescribing what may be proved under the answer of denial, and what must be pleaded as new matter, or referring to some mere points of detail: as these clauses are all embraced by implication in the more general provisions common to all the codes, and thus make no change in the law of the States where they are found, they are surplusage, and I have not quoted them. Strunk v. Smith, 36 Wis. 631. SECTION SECOND. JOINDER OF CAUSES OF ACTION. § 331. * 437. Subdivisions for Discussion herein. The discussion of this important subject will be separated into the following subdivisions: I. The statutory provisions found in the various. State codes. II. The forms and modes in which a misjoinder may occur, and the manner in which it must be objected to and corrected. III. The legal import of the term "cause of action," and the case discussed in which only a single cause of action is stated, although several different remedies, or kinds of relief, are demanded. IV. The legal import of the term "transaction; discussion of the case of "causes of action arising out of the same transaction, or transactions connected with the same subject of action." V. Instances in which the proper joinder of causes of action is connected with the proper joinder of defendants; discussion of the provision that all the causes of action must affect all of the parties. VI. Instances in which all the causes of action are against the single defendant, or against all the defendants alike; and the only question is, whether the case falls within any one of the several specified classes, except the first which embraces those arising out of the same transaction, etc. These subdivisions, I think, entirely exhaust the particular subject-matter to which this section is devoted. I. The Statutory Provisions. The provision, § 332. *438. Language of the Codes herein. which is found substantially the same with very slight modifications, if any in most of the codes, is as follows: "The plaintiff may unite in the same complaint several causes of action, whether they be such as have heretofore been denominated legal or equitable, or both, when they all arise out of, 1. The same transaction, or transactions connected with the same subject of 1 [Preferred Accident Ins. Co. v. Stone (1899), 61 Kan. 48, 58 Pac. 986; Haskell Co. Bank v. Bank of Santa Fé (1893), 51 Kan. 39, 32 Pac. 624. But see Pietsch v. Krause (1903), 116 Wis. 344, 93 N. W. 9; Reeg v. Adams (1902), 113 Wis. 175, 87 N. W. 1067; Swihart v. Harless (1896), 93 Wis. 211, 67 N. W. 413; Blakely v. Smock (1897), 96 Wis. 611, 71 N. W. 1052; Lane v. Dowd (1903), 172 Mo. 167, 72 S. W. 632; Plankinton v. Hildebrand (1895), 89 Wis. 209, 61 N. W. 839.] action; 2. Contract, express or implied; or, 3. Injuries, with or without force, to person and property, or either; or, 4. Injuries to character; or, 5. Claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same; or, 6. Claims to recover personal property, with or without damages for the withholding thereof; or, 7. Claims against a trustee, by virtue of a contract, or by operation of law.1 "But the causes of action so united must all belong to one of these classes, and, except in actions for the foreclosure of mortgages, must affect all the parties to the action, and not require different places of trial, and must be separately stated.2 1 [Bosworth v. Allen (1901), 168 N. Y. 157, 61 N. E. 163. "The cause of action to set aside the contract may properly be united with the cause of action to compel an accounting for the injurious results of the arrangement of which it is a part, since both causes of action were founded upon claims against trustees, arising by operation of law."] 2 [State v. Krause (1897), 58 Kan. 651, 50 Pac. 882 (cause of action on one bond of county treasurer cannot be joined with cause of action on another bond where sureties are different); Barry v. Wachosky (1899), 57 Neb. 534, 77 N. W. 1080. The facts in this case were as follows: James M. Barry, J. M. Brannan, and C. D. Ryan made their non-negotiable promissory note, and delivered the same to D. F. Clarke, who was payee of the same. The latter, before maturity of the note, seems to have sold and delivered it to the plaintiff, and before doing so "wrote his name across the back of the note, and over that he recited in writing that he guaranteed the payment of the note." Wachosky brought suit on the note making Barry, Brannan, Ryan, and Clarke defendants. In the opinion the court, among other things, said: "In the case at bar Clarke did write over his signature on this note a guaranty of pay. ment, and by so doing he became liable to Wachosky as a guarantor of this note. But the makers of the note were not parties to this contract of guaranty. . . Wachosky has, perhaps, two causes of action. One cause of action is on the note and against the makers thereof. The other cause of action is against Clarke -- v. Hunner (1895), 91 Wis. 116, 64 N. W. "In actions to foreclose mortgages, the court shall have power to adjudge and direct payment by the mortgagor of any residue of the mortgage debt that may remain unsatisfied after a sale of the mortgaged premises, in cases in which the mortgagor shall be personally liable for the debt secured by such mortgage; and if the mortgage debt be secured by the covenant, or obligation, of any person other than the mortgagor, the plaintiff may make such person a party to the action, and the court may adjudge payment of the residue of such debt remaining unsatisfied after a sale of the mortgaged premises, against such other person, and may enforce such judgment as in other cases." 1 1 [Arizona. "Only such causes of action may be joined as are capable of the same character of relief. Actions ex contractu shall not be joined with actions ex delicto. In actions ex delicto there shall not be joined actions to recover for injuries to the person, to property, or to character; but they shall be sued for separately." Rev. St., 1901, § 1291. Arkansas. "Several causes of action may be united in the same complaint, where each affects all the parties to the action, may be brought in the same county, be prosecuted by the same kind of proceedings, and all belong to one of the following classes: (1) Claims arising out of contract, express or implied; (2) Claims for the recovery of specific real property, and the rents, profits, and damages for withholding the same; (3) Claims for the recovery of specific personal property, and damages for the taking or withholding the same; (4) Claims for partition of real or personal property, or both; (5) Claims arising from injuries to character; (6) Claims arising from injuries to person and property; (7) Claims against a trustee by virtue of a contract or by operation of law." Sand. & Hill's Dig., § 5703. California. "The plaintiff may unite several causes of action in the same complaint, where they all arise out of: [(1) A single act committed by the defendant, or several such acts constituting but a single transaction]. (1) [2] Contracts, express or implied; (2) [3] Claims to recover specific real property, with or without damages for the withholding thereof, or for waste committed thereon, and the rents and profits of the same; (3) [4] Claims to recover specific personal property, with or without damages for the withholding thereof; (4) [5] Claims against a trustee by virtue of a contract or by operation of law; (5) [6] Injuries to character; (6) [7] Injuries to person; (7) [8] Injuries to property. The causes of action so united must all [, except in the cases mentioned in subdivision one,] belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated; but an action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to character or to the person." The portions inclosed in brackets are the portions added by the Commissioners' Amendment of 1901. See Lewis v. Dunne (1901), 134 Cal. 291, sustaining technical objections to the constitutionality of the amended code. Code Civ. Pro., § 427. The paragraph of the text relative to foreclosure suits is found in different form in § 726. Colorado. "The plaintiff may unite several causes of action in the same complaint, when they all arise out of any one of the following named classes: Provided, They affect all of the same parties, both plaintiff and defendant, and affect them in the same character and capacity; and provided, they do not require different places of trial, to wit: Class First - Actions to recover specific real property, whether the same be claimed by virtue of superiority of title or by superiority of possessory right, or on account of unlawful detainer or forcible entry; and with such claims may be united any and all |