plaintiff can thus be compelled to amend his complaint or petition, and to state each cause of action by itself, so that the defendant may deal with it by answer or demurrer as the nature of the case demands. It seems to be the settled rule in California, however, that the defect may properly be taken advantage of by demurrer.1 § 342. 448. Remedy when Second Form of Misjoinder occurs. When causes of action separately stated are improperly united in the same complaint or petition, the rule which prevails in all the States, except in the few whose special legislation has already been described, is the same as that which applies to the case of a defect of parties. If the error appears on the face of the pleading, the defendant must demur, and cannot raise the objection by answer.3 The statute adds, that, if the error do not thus appear on the face of the pleading, the defence may be presented by the answer. If the defendant omits to use either of these methods saying: "Moreover, only one cause of action is in form stated. If two were in fact included in the averments, the remedy was by motion to strike out surplusage or to require the two causes to be separately stated. A demurrer does not reach the commingling of two causes of action in a single count, if they be, under the code, of such character that they may be joined." See also Chicago, R. I. & Pac. Ry. Co. v. O'Neill (1899), 58 Neb. 239, 78 N. W. 521 ; Building & Loan Assn. v. Cameron (1896), 48 Neb. 124, 66 N. W. 1109; Ponca Mill Co. v. Mikesell (1898), 55 Neb. 98, 75 N. W. 46; Glover v. Remley (1898), 52 S. C. 492, 30 S. E. 405. A motion to strike out surplusage would also be proper: Ponca Mill Co. v. Mikesell (1898), 55 Neb. 98, 75 N. W. 46. But a motion to compel plaintiff to elect on which to stand will not lie: Austin, etc. Co. v. Heiser (1894), 6 S. D. 429, 61 N. W. 445. Nor is it ground for dismissing the complaint that with one good cause of action others are mingled: Matthews v. Bank (1900), 60 S. C. 183, 38 S. E. 437. Hayden v. Pearce (1898), 33 Ore. 89, 52 Pac. 1049. Where a misjoinder of causes of action appears on the face of the complaint, the plaintiff should be required to elect on which cause he will proceed; but when the defect is not apparent until the judgment is entered a writ of review will 1 Nevada Cy., etc. Canal Co. v. Kidd, 43 Cal. 180, 37 Cal. 282; Watson v. San Francisco & H. B. R. Co., 41 Cal. 17, 19; Buckingham v. Waters, 14 Cal. 146; White v. Cox, 46 Cal. 169. In Wright v. Conner, 34 Iowa, 240, 242, it was said: "If through bad pleading two or more distinct causes of action or defences are contained in one division of a petition or answer, which is called a count, a demurrer may be directed at one of them if insufficient at law." In strictness, the objecting party ought first to require, by motion, that the petition or answer be properly divided, or an election made between the causes of action or the defences; but, omitting this, he may demur. 2 [Dudley v. Duval (1902), 29 Wash. 528, 70 Pac. 68; Lane v. Dowd (1903), 172 Mo. 167, 72 S. W. 632; see Bandmann v. Davis (1899), 23 Mont. 382, 59 Pac. 856.] 3 [A demurrer for want of sufficient facts will not reach this objection. Marvin v. Yates (1901), 26 Wash. 50, 66 Pac. 131.] properly, he is deemed to have waived the objection. The practical result is, that a demurrer must always be resorted to, or all objection to such misjoinder will be waived.1 The demurrer may be by any of the defendants; 2 and it must be to the entire complaint or petition, and not to any cause or causes of action supposed to have been improperly joined. To sustain a demurrer for this reason, however, the complaint must contain two or more good grounds of suit which cannot properly be joined in ▾ the same action. When a complaint, therefore, consists of two or more counts, and one sets forth a good cause of action, and another does not, although it attempts to do so, the pleading is not demurrable on the ground of a misjoinder, even though the causes of action could not have been united had they been sufficiently and properly alleged.* § 343.449. Rule in Few States. In a very few States, however, the practice is different, and a demurrer is not permitted as the remedy for a misjoinder. It is so in Kentucky. The defendant must move to strike out, or to compel the plaintiff to elect which cause of action he will proceed upon, and to dismiss the others; and a failure to make such motion is a complete waiver of the objection. The plaintiff may also at any time before trial withdraw any cause of action. The sections of the Iowa code 1 Blossom v. Barrett, 37 N. Y. 434, 436; Smith v. Orser, 43 Barb, 187, 193; Mead r. Bagnall, 15 Wis. 156; Jamison v. Copher, 35 Mo. 483, 487; Ashby v. Winston, 26 Mo. 210: Hibernia Sav. Soc. v. Ordway, 38 Cal. 679; Lawrence v. Montgomery, 37 Cal. 183. See also Field v. Hurst, 9 S. C. 277; Eversdon v. Mayhew, 85 Cal. 1; [Ross v. Jones (1896), 47 S. C. 211, 25 S. E. 59.] 2 Ashby v. Winston, 26 Mo. 210. If A. and B. are sued together on several causes of action, the joinder of which would have been proper had the suit been against A. alone, A. may demur to the misjoinder of causes of action. Hoffman v. Wheelock, 62 Wis. 434. 8 Bougher v. Scobey, 16 Ind. 151, 154; and must be on the specific ground of the misjoinder, -a demurrer for want of sufficient facts does not raise the objection: Cox v. West. Pac. R. Co., 47 Cal. 87, 89, 90; Remy v. Olds, 88 Cal. 537. Truesdell v. Rhodes, 26 Wis. 215, 5 219; Bassett v. Warner, 23 Wis. 673, 689, 690; Willard v. Reas, 26 Wis. 540, 544; Lee v. Simpson, 29 Wis. 333; Cox v. West. Pac. R. Co., 47 Cal. 87, 89, 90; Sullivan v. N. Y., N. H. & H. R. Co., 19 Blatchf. 388; Jenkins v. Thomason, 32 S. C. 254. 5 Forkner v. Hart, Stanton's Code, p. 60; Wilson v. Thompson, id. p. 60; Hart v. Cundiff, id. p. 61; Hord v. Chandler, 13 B. Mon. 403; McKee . Pope, 18 id. 548, 555; Bonney v. Reardin, 6 Bush, 34; Dragoo v. Levi, 2 Duv. 520; Chiles v. Drake, 2 Metc. (Ky.) 146; Hancock v. Johnson, 1 Metc. (Ky.) 242; Sale v. Crutchfield, 8 Bush, 636, 646; Hinkle v. Davenport, 38 Iowa, 355, 358; Cobb v. Ill. Cent. R. Co., 38 Iowa, 601, 616; Grant v. McCarty, 38 Iowa, 468. If the plaintiff refuse to elect, the court cannot therefore dismiss the action, but must make the election for him. Sheppard v. Stephens (Ky. 1887), 2 S. W. Rep. 548. [Arkansas also follows this practice. Riley v. Norman, 39 Ark. 158. In For quoted in § 338 show that a similar practice exists in that State. § 344. * 450. Remedy when Third Case of Misjoinder occurs. The third case presents some difficulties. When the complaint or petition contains causes of action which cannot properly be united, and they are mingled and combined in the same allegations, in other words, the pleading in form sets forth but one cause of action, while in reality it embraces two or more which cannot be joined in any form, is the defendant's remedy by demurrer, or by motion in the first instance that the pleading be made more definite and certain by separating the causes of action, and by demurrer when such separation has been accomplished? In Missouri it is definitely settled that the remedy is by demurrer. That this is a proper practice is implied with more or less distinctness by decisions in several other States.2 § 345. *451. Author's Criticism and Suggestion herein. There are grave difficulties attendant upon the adoption of such a rule, although it seems to be generally supported by the decided cases. When, upon sustaining a demurrer interposed upon the ground of a misjoinder of causes of action, the action itself is not defeated, but the causes of action improperly united are merely separated, and new actions corresponding with such division are proceeded with, it would seem to be a necessary prerequisite that the causes dyce v. Nix (1893), 58 Ark. 136, 23 S. W. 967, the defendant demurred for misjoinder, but the court considered the demurrer as a motion to strike and as such passed upon its merits. See also Reynolds v. Roth (1895), 61 Ark. 317, 33 S. W. 105.] 1 Mulholland v. Rapp, 50 Mo. 42; Ederlin v. Judge, 36 Mo. 350; Young v. Coleman, 43 Mo. 179, 184; Cheely's Adm. v. Wells, 33 Mo. 106, 109. And see Pickering v. Miss. Val. N. Tel. Co., 47 Mo. 457; House v. Lowell, 45 Mo. 381. 2 Cary v. Wheeler, 14 Wis. 281; Burrows v. Holderman, 31 Ind. 412; Lane v. State, 27 id. 108, 112; Fritz v. Fritz, 23 id. 388, 390; Hibernia Sav. Soc. v. Ordway, 38 Cal. 679; Anderson v. Hill, 53 Barb. 238. See, however, Rogers v. Smith, 17 Ind. 323, per Perkins J., which seems to hold that the remedy should be by motion. That a demurrer is the proper remedy is distinctly held by these later cases: Gold- [Haskell County Bank v. Bank of of action should have been separately and distinctly stated in the original pleading. To allow the demurrer to a complaint or petition in which several causes of action are mingled up, and to divide this mass of confused allegations into as many complaints as there are causes of action, would seem to be a work of great difficulty, if not of absolute impossibility. Again: it is always difficult if not impossible to determine with exactness whether a complaint or petition does contain two or more different causes of action when the allegations are thus combined into one statement. If the averments are found sufficient to express one cause of action, it may generally be said that the other averments are mere surplusage, which should be rejected on a motion made for that purpose, and not the material allegations which set forth a second cause of action. For these reasons, which are based chiefly upon notions of convenience, a demurrer does not seem to be an appropriate remedy until the causes of action have been separated, and it is known with certainty what and how many they are. In this case, therefore, the more convenient practice would seem to be a motion in the first instance to make the pleading more certain and definite by arranging it into distinct causes of action, or a motion to strike out the redundant matter and surplusage and thus reduce it to a single definite cause of action. The latter order would take the place of a demurrer; the former would be followed by a demurrer after the causes of action had been separated.1 III. Meaning of the Term "Cause of Action;" Where one Cause of Action only is stated, although several Different Kinds of Relief are demanded. § 346. * 452. Confounding "Cause of Action" with Remedy." Decisions herein. Definition Obtained by Analysis. The cause of action is very often confounded with the remedy. This mistake or misconception is peculiarly apt to occur in cases where, under the code, the plaintiff seeks to obtain legal and equitable relief combined, the right to such relief springing from the same state of facts. To avoid this tendency to confusion, it is absolutely necessary to ascertain and fix with certainty the true mean 1 [Lewis v. Hinson (1902), 64 S. C. 571, 43 S. E. 15 (quoting the text); Cargar v. Fee (1894), 140 Ind. 572, 39 N. E. 93; Times Publishing Co. v. Everett (1894), 9 Wash. 518, 37 Pac. 695.] ing of the term "cause of action." The American courts of the present day seem to avoid the announcement of any general principle, or the giving of any general definitions. While, therefore, they have repeatedly held that but one cause of action was stated in a case before them, and have carefully distinguished it in that instance from the reliefs demanded, they have not attempted to define the term "cause of action" in any general and abstract manner, so that this definition might be used as a test in all other cases. We shall obtain no direct help, therefore, from their decisions; but they will furnish examples and tests to determine whether any definition which may be framed is accurate. I shall, however, attempt a definition or description, basing it upon an analysis of the essential elements which enter into every judicial proceeding for the protection of a private right on the one side, and the enforcement of a private duty on the other. There are such elements or features which necessarily combine in every action; they are independent of any judicial recognition; they exist in the very nature of things; and, if we can by an accurate analysis discover these elements, we shall at once have obtained a correct notion of the term "cause of action." § 347. *453. Remedy. Elements of every Judicial Action. Elements Constituting Cause of Action. Every action is brought in order to obtain some particular result which we term the remedy, which the code calls the "relief," and which, when granted, is summed up or embodied in the judgment of the court. This result is not the " cause of action " as that term is used in the codes. It is true this final result, or rather the desire of obtaining it, is the primary motive which acts upon the will of the plaintiff and impels him to commence the proceeding, and in the metaphysical sense it can properly be called the cause of this action, but it is certainly not so in the legal sense of the phrase. This final result is the "object of the action" as that term is frequently used in the codes and in modern legal terminology.1 It was shown in the introduction that every remedial right arises out of an antecedent primary right and corresponding duty and a delict or breach of such primary right and duty by the person on whom the duty rests. Every judicial action must therefore involve 1 ["Every action is brought in order not the cause of action;' it is rather to obtain some particular result which is the object of the action."" Wildman v. termed the remedy. This final result is Wildman (1898), 70 Conn. 700, 41 Atl. 1.] 1 1 |