1 State v. Chadwick, 10 Oreg. 423; Fritz v. Barnes, 6 Neb. 435: Warner . Warner, 11 Kan. 121; Pudney v. Burkhart, 62 Ind. 179; Ehle v. Huller, 6 Bosw. 661; 10 Abb. Pr. 287.

2 State v. Bath, 21 Kan. 583; State v. Chadwick, 10 Oreg. 423; Hughes v. Feeter, 18 Iowa, 142. The right to require the plaintiff to verify his complaint or petition is waived by answer, and after having thus waived his right, the defendant cannot regain it by withdrawing his answer: Butler v. Church of Immaculate Conception, 14 Bush, 540.

3 Bragg v. Bickford, 4 How. Pr. 21; Davis v. Potter, 4 How. Pr. 155 Jones v. United States Slate Co. 16 How. Pr. 125; White v. Freese, 2 Cin. Rep. 30.

4 White v. Cummings, 3 Sand. 716; Hull v. Ball, 14 How. Pr. 305. If a copy of a pleading which should be verified has a defective verification, or the verification is omitted, and the copy is retained by the party upon whom the service is made, it is a waiver of the defect or omission: Hayward v. Grant, 13 Minn. 165; Wilkin v. Gilman, 13 How. Pr. 225. And see Wilson v. Bennett, 2 Civ. Proc. R. 34; Ralph v. Husson, 19 Jones & S. 515.

5 Swarz v. Oppold, 74 N. Y. 307; Butler v. Church of Immaculate Conception, 14 Bush, 540.

6 Payne v. Flournoy, 20 Ark. 500.

7 Alspaugh v. Winstead, 79 N. C. 526.

8 Harney v. Porter, 62 Cal. 511. When a judgment is rendered on a warrant of attorney which authorizes the waiving of process and the release of all errors, any defect in the verification of the petition, on a proceeding in error, will be deemed to have been waived: First Nat. Bank v. Reed, 31 Ohio St. 435.

3262. Want of capacity to sue. - An objection to the capacity of a plaintiff to maintain an action, if not taken by demurrer or answer, is waived. Thus, where an infant sues without procuring the appointment of a guardian or next friend, as required by the statute, the defendant may take advantage of the defect by demurrer or by answer, but if he fails to do so, the defect is waived. The defendant cannot, on the trial, after the evidence is closed, for the first time object to a recovery on the ground that the plaintiff was not the real party in interest, and had no capacity or right to sue. And where the plaintiff was trustee of an express trust, and brought an action in his own name without alleging in his complaint that he was such trustee, it was held that the objection was not available on appeal, not having been raised on the trial. The objection

that the plaintiffs, upon the showing made in the complaint or petition, are not in law entitled to sue as a firm, should be taken by demurrer, and if not so taken, the objection is waived.5

1 Town of Pierrepont v. Lovelass, 4 Hun, 696; Mosselman ". Caen, 21 How. Pr. 243; 34 Barb. 66; Hoop v. Plummer, 14 Ohio St. 448; People v. Metrop. Telephone Co. 31 Hun, 536.

2 Jones v. Steele, 36 Mo. 324; Rutter v. Puckhofer, 9 Bosw. 639; Parks v. Parks, 13 Abb. Pr. 161. And see Palmer v. Davis, 28 N. Y. 242. So the objection that the plaintiff is an alien enemy, if not taken by demurrer or answer, is waived: McNair v. Toler, 21 Minn. 175.

3 Perkins v. Ingersoll, 1 Dill. 417.

4 Davis v. Reynolds, 48 How. Pr. 210.

5 Haskins v. Alcott, 13 Ohio St. 210, 217.

? 263. Defect of partios.-The objection that there is a defect of parties must be taken by answer or demurrer, otherwise the objection is deemed to be waived.1 And no distinction is made in this respect between actions ex contractu and actions ex delicto, or between a defect of parties plaintiff and of parties defendant.? Where a member of a partnership is not joined as plaintiff in an action on a demand due the firm, if objection is not taken to this defect by answer, it cannot be raised on the trial, upon a motion for a nonsuit, on the ground of a variance or failure of proof, as might have been done at common law. And if the objection be taken by answer, it must distinctly set up the defect of parties as a defense, and must allege wherein the defect consists, specifically stating who should have been joined as plaintiff. The objection of defect of parties cannot be raised by instructions to the jury;5 nor can the objection be raised in the court above. If a defect of parties defendant is apparent upon the face of the complaint, and advantage of the defect be not taken by demurrer, it will be deemed waived if the defendants answer, even though they insist on the defect in their answer.

1 Merritt v. Walsh, 32 N. Y. 685; Davis ". Bechstein, 69 N. Y. 440, 25 Am. Rep. 218; Darling v. Kirk, 4 N. Y. Week. Dig 67; Risley v. Wightman, 13 Hun, 163; Browning v. Marvin, 22 Hun, 547; Horst kotte v. Menier, 50 Mo. 160; Butler v Lawson, 72 Mo. 247; Blackeley v. Le Duc, 22 Minn. 476; Lowry v. Harris, 12 Minn. 255; Waits v McClure, 10 Bush, 763; Roberts v. Johnson, 5 Jones & S. 157; 58 N. Y. 613; Blount v. Wetherell, 32 Hun, 386.

2 Davis v. Choteau, 32 Minn. 548; Tremper v. Conklin, 44 Barb. 456; Conklin v. Barton, 43 Barb. 435.

3 Davis v. Choteau, 32 Minn. 548. And see Albro v. Lawson, 17 Mon. B. 642; Wotherspoon v. Wotherspoon, 17 Jones & S. 152.

4 Davis v. Choteau, 32 Minn. 548.

5 Dunn v. Railroad Co. 68 Mo. 268.

6 Potter v. Ellice, 48 N. Y. 21. 7 Walker v. Deaver, 79 Mo. 664.

2234. Misjoinder of parties.—If it is sought to take advantage of the misjoinder of parties plaintiff, the objection should be raised in the court below; and the defendant having failed to raise it there, must be considered as having waived it, and cannot be admitted to raise it for the first time in the reviewing court.2 So an objection to the erroneous admission of a new party to an action comes too late, if made for the first time when the case has reached the court above.3 Misjoinder of parties in a complaint has generally been made a ground of demurrer in the several Codes; and if upon the face of a complaint there appears to be a misjoinder of parties plaintiff, the objection must be taken by special demurrer, and if not so taken, it is waived. The question cannot be raised under a demurrer interposed upon the ground that the complaint does not state facts to constitute a cause of action. A misjoinder of parties plaintiff not appearing upon the face of the complaint, may be pleaded in the answer, and be made a ground of nonsuit against all the plaintiffs. The objection that one interested with the plaintiff is made a defendant, and no reason given for not making him a plaintiff, is held to be waived by a failure to demur.8

1 Long v. De Bevis, 31 Ark. 480. 2 Long v. De Bevis, 31 Ark. 480.

3 Weil v. Simmons, 66 Mo. 617. 4 See 50, ante.

5 Tennant v. Pfister, 51 Cal. 511.

6 Tennant v. Pfister, 51 Cal. 511; Gillam v. Sigman, 28 Cal. 637. See Marsh v. Board of Supervisors, 38 Wis. 250; Willard. Reas, 26 Wis. 540; Schiffer v. Eau Claire, 51 Wis. 385; Nevil v. Clifford, 55 Wis. 161. 7 South Fork etc. Canal Co. v. Snow, 49 Cal. 155. 8 Williams v. Ingersoll, 23 Hun, 284.

2265. Misjoinder of actions. Objection to a complaint for misjoinder of distinct causes of action, if not taken by demurrer or answer, is waived.1 And according to the decisions in some of the States, the objection is waived unless taken by demurrer.2 And it is held that the misjoinder cannot be taken advantage of, unless specially assigned by the demurrer.3 In Arkansas, objection is taken by motion to strike out. In Dakota, it should be taken by demurrer, motion to strike out, or motion to compel the plaintiff to elect upon which cause of action he will proceed. If taken in none of these modes, the objection is waived. It was however held, that where a complaint contains a variety of subjects of litigation not proper to be joined, also parties not properly joinable, and omitting necessary parties, the court may sua sponte dismiss the complaint for multifariousness, whether demurred to for such causes

or not."

1 James v. Wilder, 25 Minn. 305; Cloon v. Insurance Co. 1 Handy, 32.

2 Blossom v. Barrett, 37 N. Y. 434; Field v. Hurst, 9 S. C. 277; Finley v. Hayes, 81 N. C. 368; Simpson v. Greeley, 8 Kan. 586; Jessup v. City Bank, 14 Wis. 331; Cary v. Wheeler, 14 Wis. 281. And see Goldberg v. Uitey, 60 N. Y. 427.

3 Haverstock v. Trudel, 51 Cal. 431.

4 Terry v. Rosell, 32 Ark. 478; Dyer v. Jacoway, 42 Ark. 186.

5 Fraley v. Bentley, 1 Dakota, 25.

6 Fraley v. Bentley, 1 Dakota, 25. And see McCarthy v. Garraghty, 10 Ohio St. 438; Berry v. Carter, 19 Kan. 135; Turner v. Althaus, 6 Neb. 54.

7 Mattair v. Payne, 15 Fla. 682.

? 266. Causes of action not separately stated and numbered. When a complaint or petition contains more than one cause of action, each is required to be stated in a count or division by itself, and numbered;1 but when this rule is yiolated, the defendant must make his objection in the court below, and if he fails to do so, and goes to trial, he thereby waives the objection.2 The objection is properly made by motion,3 and a demurrer will not lie to a complaint containing different causes of action which may be united, merely because they are not separately stated and numbered. But the court may, of its own motion, require the plaintiff to state separately his several causes of action.5 And it is held to be within the discretion of the court below to compel an election between the causes of action stated in one count, or require them to be separately stated and numbered.6

1 See 35, ante.

2 Cobbe v. Railroad Co. 38 Iowa, 601; Cruver v. Railroad Co. 62 Iowa, 460; Truitt v. Baird, 12 Kan. 420; McKinney v. McKinney, 8 Ohio St. 423; Christal v. Craig, 80 Mo. 367.

3 Sentinel Co. v. Thomson, 38 Wis. 489; Adams v. Secor, 6 Kan. 542; Ridenour v. Mayo, 29 Ohio St. 138.

4 Goldberg v. Ultey, 60 N. Y. 427; Anderson v. Hill, 53 Barb. 238; Tisdale v. Moore, 8 Hun, 19; Freer v. Denton, 61 N. Y. 492.

5 Bailey v. Hughes, 35 Ohio St. 601.

6 People v. Tweed, 63 N. Y. 194.

2267. Another action pending.-The proper method of taking advantage of the pendency of a previous action for the same cause is by demurrer or answer, and if the objection is not so taken, it is waived.1

1 Hornfager v. Hornfager, 6 How. Pr. 279; Bishop v. Bishop, 7 Robt. 194; Dawley v. Brown, 9 Hun, 461. And see Williams v. MeGrade, 18 Minn. 88.

? 268. Omitting name. It is bad practice to sue by initial letters instead of the full name. But the objection for uncertainty in the name in such case is held