petition, in such a manner that each of these divisions might, if taken alone, be the substance of an independent action. In fact, the whole proceeding is the combining of several actions into one. At the common law, these separate divisions of the declaration were termed "counts;" and that word is still used by textwriters and judges, although, with one or two exceptions, it is not authorized by the codes; and it tends to produce confusion and misapprehension, since the common-law "count" was substantially a very different thing from the "cause of action" of the new procedure. In one or two States, the term "paragraph' is used to designate these primary divisions. The difficulty in the use of this term is that it is now very generally used in England, and in most of the States where the reformed system prevails, to designate the short sub-divisions, or allegations, of facts into which each cause of action is separated, according to a mode of pleading which has become very common. The term " cause of action" is perhaps as proper as any which can be used for the purpose. That such a separation should be made, and that each distinct cause of action should be stated in a single and independent division, so that the defendant may answer or demur to it without any confusion with others, is plainly indispensable to an orderly system of pleading, and is expressly required by all the codes; 1 and in some of the States the courts have strictly enforced the requirement, and have thereby done much to prevent the formal presentations of the issues to be tried from falling into that confused and bungling condition which exists to so great an extent in certain of the States.

§ 337.443. How Question of Misjoinder of Causes of Action is raised. Effect of Sustaining Demurrer upon this Ground. The special provisions respecting the manner of raising an objection to a misjoinder of causes of action, and the effect thereof, are as follows: In all the codes but two, it is prescribed that the defendant may demur to the complaint, or petition, if it appear on the face thereof that several causes of action have been improperly united; that, if the error does not so appear, the objection may be taken by the answer; and that, if not taken in either of these modes, it is waived.2 The sustaining of a de

shall

[Maisenbacker v. Society Concordia (1899), 71 Conn. 369, 42 Atl. 67.] 2 See these provisions, collected in the text or notes, supra, § *433. These rules

are identical with those which regulate the method of objecting to a defect of parties; and the decisions already cited (S$ *206, *207, *287), of course, apply to

murrer upon this ground is not fatal to the action in all the States. Several codes contain the very just provision, that, when such a demurrer is sustained, the court may simply order the action to be divided into as many as may be necessary for the proper hearing and determination of the causes of action set forth in the original pleading. The plaintiff is thus not thrown out of court in respect of any of the causes of action alleged by him; he is merely required to separate the single cause into the number of independent suits which he should have originally brought.2

§ 338. *444. Effect of Misjoinder in some States. In one or two States a misjoinder is attended with even less serious consequences than this, the sole object of the statutory provision on the subject being to secure a trial of each cause of action before the proper tribunal. In Iowa there can be no misjoinder, properly so called, except by uniting a legal and an equitable cause of action. Still, if two legal causes are so utterly incongruous as to prevent a trial of them together, the court may order them to be tried separately. The clauses of the Iowa code are found in the foot-note. The provisions of the Kentucky code, in reference to

the present subject-matter. If the objection appears on the face of the pleading, it must be raised by demurrer, and not by answer; and this is substantially the same as saying that it must always be raised by demurrer, because the misjoinder will always appear on the face of the pleading. See James v. Wilder, 25 Minn. 305; Mead v. Brown, 65 Mo. 552; Finley v. Hayes, 81 N. C. 368; Boon v. Carter, 19 Kans. 135; Keller v. Boatman, 49 Ind. 104; Rankin v. Collins, 50 id. 158; Hardy v. Miller, 11 Neb. 395.

[Gardner v. Gardner (1896), 23 Nev. 207, 45 Pac. 139; Smith v. Putnam (1900), 107 Wis. 155, 82 N. W. 1077; Porter v. Sherman County Banking Co (1893), 36 Neb. 271, 54 N. W. 424; Beale v. Barnett's Ad'm (1901), Ky., 64 S. W. 838; Murray v. Booker (1900), Ky., 58 S. W. 788; Sickman v. Wollett (1903), - Colo. - 71 Pac. 1107; Ross v. Wait (1894), 4 S. D. 584, 57 N. W. 497; Corbett v. Wrenn (1894), 25 Ore. 305, 35 Pac. 658.]

[Ohio, Bates' St., 1900, § 5065; Wisconsin, St., 1898, § 2686; North Carolina, Code, § 272] New York, § 172 (497); Nebraska, § 97; Kansas, § 92; South Car

olina, § 195. See Alexander v. Thacker, 30 Neb. 614.

2 [Solomon v. Bates (1896), 118 N. C. 311, 24 S. E. 746: Where a demurrer for misjoinder of causes is well founded, the action should not be dismissed but simply divided (Code, § 272). But where there is a misjoinder both of causes and parties, the action cannot be divided under this section of the code: Cromartie r. Parker (1897), 121 N. C. 198, 28 S. E. 297; Morton v. Western Union Tel. Co. (1902), 130 N. C. 299, 41 S. E. 484. See also Matthews v. Bank (1901), 60 S. C. 183, 38 S. E. 437; Weeks v. McPhail (1901), 128 N. C. 134, 38 S. E. 292.

Gattis v. Kilgo (1899), 125 N. C. 133, 34 S. E. 246: Where a demurrer is sustained on the ground of misjoinder of causes of action, it is within the discretion of the judge to allow an amendment, and if such amendment is not made it becomes the duty of the judge to divide the action on the docket for separate trials.]

8 [Iowa, Code of 1897, § 3546: "The plaintiff may at any time before the final submission of the case to the jury, or to the court when the trial is by the court,

the remedy for a misjoinder, are similar to those of Iowa. The practice in Indiana differs from that which prevails in the States generally, and also from that established in Iowa. A demurrer for misjoinder is permitted; but its effect can never be fatal to the action. In fact, the matter seems to be practically left in the discretion of the lower or trial court, and any disposition of the objection to a misjoinder made by it cannot be assigned as error so as to reverse a judgment on review. The sections of the Indiana code are quoted in the note.2

*

§ 339. 445. Motion by Adverse Party Requiring Correction of Pleading. There is another section found in all the codes, which has an important bearing upon the subject under consideration in some of its aspects, that which permits the correction of pleadings at the instance of the adverse party on his motion by striking out irrelevant and redundant matter, and by requiring the pleading to be made more definite and certain by amendment where its allegations are so indefinite and uncertain that the precise nature of the charge or defence is not apparent.1

§ 340. *416. Possible Forms of Misjoinder. Three forms or modes of alleged misjoinder are possible, and they must be examined separately in respect to the manner in which the objection thereto should be taken. They are, (1) When different causes of action which may properly be united are alleged in the one complaint or petition not distinctly and separately as required by the statute, but combined and mingled together in a single statement. (2) When different causes of action which cannot properly be united are alleged in the one complaint or petition, and are separately and distinctly stated. (3) When different causes of action which cannot properly be united are alleged in the one complaint or petition not distinctly and separately, but combined and mingled together in a single statement.2 These three cases will be examined in order.

§ 341.447. First Form of Misjoinder not Ground of Demurrer. Remedy is by Motion. Although the sections of the codes, defining what causes of action may be united, all require in positive terms that when so joined each must be separately stated,3 it is settled by the weight of authority, and seems to be the general rule, that a violation of this particular requirement is not a ground of demurrer. This conclusion is based upon the language

of action." "§ 346. Where any of the
matters enumerated in § [342] do not
appear on the face of the complaint, the
objection (except for misjoinder of causes)
may be taken by answer." It is plain
from the foregoing that the practical
effect of a successful demurrer is trivial.
It compels the separation of the action,
and the trial of two or more suits instead
of one.
No discretion is left to the court,
as in New York, Iowa, and other States;
the court shall cause the separate actions
to be docketed. See Clark v. Lineberger,

44 Ind. 223, 227, that no objection can be raised on appeal.

1 See supra, §* 434.

2 [Lewis v. Hinson (1902), 64 S. C. 571, 43 S. E. 15 (quoting the text).]

8 [Not so in Connecticut. See Knapp v. Walker (1900), 73 Conn. 459, 47 Atl. 655.

And in South Carolina, by the act of 1898, it is not necessary, in an action ex delicto, to make use of separate allegations setting up actual and punitive damages: Machen v. Tel. Co. (1902), 63 S. C. 363, 41 S. E. 448.]

of the codes authorizing a demurrer for the reason that causes of action" are improperly united in the complaint or petition." 1 It is said that this expression only points to the case in which causes of action have been embraced in one pleading which could not properly be joined; while in the special case under consideration it is assumed that all the causes of action may be united, and the only error consists in the external form or manner of their joinder. The remedy is, therefore, not by a demurrer, but by a motion to make the pleading more definite and certain by separating and distinctly stating the different causes of action.2 The