interposed to a complaint containing several causes of action properly united, but of one of which the court has no jurisdiction, it will be overruled if it is to the whole complaint, and assigns no cause of demurrer except the improper union of several causes of action; 8 the demurrer in such case should be limited to the cause of action of which the court has no jurisdiction." 1 Cal. Code Civ. Proc. 430, subd. 1; 2 Ohio Rev. Stats. 5062, subd. 1; Doll v. Feller, 16 Cal. 432; Powers v. Ames, Minn. 178; Bank of Charlotte v. Britton, 66 N. C. 365; Swann v. Phoenix Iron Co. .58 Ga. 199. 2 Atlantic etc. Tel. Co. v. Baltimore etc. R. R. Co. 87 N. Y. 355. 3 Johnson v. Adams Tobacco Co. 14 Hun, 89; Crowley v. Royal Exchange Shipping Co. 2 Civ. Proc. R. 174; Wilson v. Mayor etc. 15 How. Pr. 500; 6 Abb. Pr. 6. 4 De Bussiere v. Holladay, 4 Abb. N. C. 111; Hughey v. Sidwell, 18 Mon. B. 261; } 45, ante. 5 Hotchkiss v. Elting, 36 Barb. 38. See Burnham v. De Bevoise, 8 How. Pr. 160. 6 Nones v. Hope Ins. Co. 5 How. Pr. 96; 8 Barb. 541; Ogdensburgh etc. R. R. Co. v. Vermont etc. R. R. Co. 16 Abb. Pr. N. S. 249; 4 Hun, 712. 7 Nones v. Hope Ins. Co. 8 Barb. 541; 5 How. Pr. 96. 8 Cook v. Chase, 3 Duer, 64 9 Cook v. Chase, 3 Duer, 643. A demurrer on the grounds" that the court has no jurisdiction either of the person of the defendants or of the subject of the action," and "that the complaint does not state facts sufficient to constitute a cause of action," is held to be sufficiently explicit under the rule of construction adopted by the courts of California: Elissen v. Halleck, 6 Cal. 386. Compare Kent v. Snyder, 30 Cal. 666. 248. Want of capacity to sue. - Objection that the plaintiff has not legal capacity to sue, when apparent on the face of the complaint or petition, should be taken by demurrer and not by answer. But a demurrer on the ground that the plaintiff has not legal capacity to sue can only be sustained where the pleading discloses some legal incapacity, such as infancy, lunacy, and the like. The want of capacity must appear from the facts that are stated, and not from the omission of facts that would expose such want;3 in the latter case, the objection must be taken by answer. Thus, if it appears upon the face of the pleading that a plaintiff suing as a corporation is not such in fact, a demurrer is proper; 5 but if the pleading does not show upon its face that the plaintiff is not a corporation, the objection that it is not such should be taken by answer. The objection of want of legal capacity in the plaintiff to sue is waived, unless it be taken either by demurrer or answer. But where the plaintiff sues by a name representing no person, natural or artificial, it seems that the objection must be taken by motion and not by demurrer.8 1 Cal. Code Civ. Proc. 430, subd. 2; N. Y. Code Civ. Proc. 488, subd. 3; Matthews v. Stietz, 5 Civ. Proc. R. 235; Hobart v. Frost, 5 Duer, 672; Myers v. Machado, 6 Duer, 678; 14 How. Pr. 149; Haskins v. Alcott, 13 Ohio St. 210. 2 Winfield Town Co. v. Maris, 11 Kan. 128; Dale v. Thomas, 67 Ind. 570; Farrell v. Cook, 16 Neb. 483. And see Bartholomew v. Lyon, 67 Barb. 86; Grantman v. Thrall, 44 Barb. 173; Robbins v. Wells, 26 How. Pr. 15; 18 Abb. Pr. 191; Jones v. Steele, 36 Mo. 324; McNair v. Toler, 21 Minn. 175. That it applies to all cases where the plaintiff, though having an interest in the subject of the suit and the relief demanded, does not show a right to appear in court and demand such relief in his own name: Bulkley v. Big Muddy Iron Co. 77 Mo. 105. 3 Phoenix Bank v. Donnell, 41 Barb. 571; 40 N. Y. 410; Doll v. Feller, 16 Cal. 432; Minneapolis Harvester Works v. Libby, 24 Minn. 327; State v. Torinns, 22 Minn. 272; American Button Hole Co. v. Moore, 2 Dakota, 280, 200. 4 Barclay v. Quicksilver Min. Co. 6 Lans. 25; Swamp etc. District v. Feck, 60 Cal. 403. 5 Phoenix Bank v. Donnell, 41 Barb. 571; 40 N. Y. 410. Compare Rauh v. Board of Commissioners, 66 How. Pr. 368; Tolmie v. Dean, 1 Wash. 46; Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648. 6 Phoenix Bank v. Donnell, 40 N. Y. 410; 2 Wait's Pr. 448. 7 Hastings v. McKinley, 1 Smith, E. D. 273; Tapley v. Tapley, 10 Minn. 448; Palmer v. Davis, 28 N. Y. 242; Van Amringe v. Barnett, 8 Bosw. 357; Hoop v. Plummer, 14 Ohio St. 448; Jones v. Steele, 36 Mo. 324; Pettigrew v. Washington Co. 43 Ark. 33. 8 Bank of Havana v. Magee, 16 How. Pr. 97; 7 Abb. Pr. 134; 20 N. Y. 355. And see Gardner v. McClure, 6 Minn. 250. 249. Another action pending.-The defendant may demur, when it appears upon the face of the complaint or petition that there is another action pending between the same parties, for the same cause. If the fact does not appear upon the face of the complaint or petition, the remedy is by answer and not by demurrer.2 Nor can a demurrer be sustained on this ground, unless it appears that both actions are for the identical cause of action; nor will it lie when the party demurring is not a party to the former suit; though it is immaterial which of the parties to the action in which the demurrer is interposed commenced the prior action. Nor does it matter that the prior proceeding is not strictly an action, but was an attachment, or citation before a surrogate, or a proceeding in court founded on a petition. The principle governing such cases is, that if full relief can be had in the one suit, no others shall be allowed, and a demurrer lies; but if the prior action is for relief which could not be granted in the action demurred to, this principle does not apply. And a demurrer is not sustained where the other action is pending in a court of the United States, or of a sister State." 1 Cal. Code Civ. Proc. subd. 4; 2 Ohio Rev. Stats. 430, subd. 3; N. Y. Code Civ. Proc. 488, 5062, subd. 3; Bishop v. Bishop, 7 Robt. 194; Mosher v. Ind. School District, 42 Iowa, 632; Harris v. Johnson, 65 N. C. 478; Hamlin v. Wright, 23 Wis. 491. 2 Hornfager v. Hornfager, 1 Code R. N. S. 412; 6 How. Pr. 279; Burrows v. Miller, 5 How. Pr. 51. 3 Kelsey v. Ward, 16 Abb. Pr. 98; 4 Geery v. Webster, 11 Hun, 428. Leonard, 20 How. Pr. 193. Paige v. Wilson, 8 Bosw. 294. And see Auburn City Bank v. 5 Hornfager v. Hornfager, 1 Code R. N. S. 412; 6 How. Pr. 279; 2 Wait's Pr. 448; Groshon v. Lyon, 16 Barb. 461. That in order to sustain the demurrer, the plaintiff in the latter action must be the plaintiff in the former action: See Walsworth v. Johnson, 41 Cal. 61; O'Connor v. Blake, 29 Cal. 312; Wadleigh v. Veazie, 3 Sum. 165. 6 Groshon v. Lyon, 16 Barb. 461. 7 Groshon v. Lyon, 16 Barb. 461. See Daubman v. Schulting, 51 How. Pr. 337. 187. 8 Haire v. Baker, 5 N. Y. 357. See Cordier v. Cordier, 20 How. Pr. 9 Cook v. Litchfield, 5 Sand. 330; Williams v. Ayrault, 31 Barb. 364; Burrows v. Miller, 2 Code R. 101; 5 How. Pr. 51; Sloan v. McDowell, 75 N. C. 29. ? 50. Misjoinder of parties.—By a misjoinder of parties is meant an excess of parties. And under the Codes of some of the States and Territories, a misjoin der of parties, plaintiff or defendant, is expressly made a ground of demurrer. In other States, a misjoinder of parties, plaintiff but not defendant, is expressly made a ground of demurrer. But in many of the States which have adopted the Code system of pleading, a misjoinder of parties, plaintiff or defendant, cannot be assailed by demurrer; if, however, the facts stated in the pleading show no cause of action against the defendants in favor of one of the plaintiffs, the defendants may demur as to such plaintiff, upon the ground that the pleading does not state facts sufficient to constitute a cause of action.5 So, a defendant improperly joined may demur on the ground that no cause of action is stated against him. Thus, in a suit for relief from fraud, against several defendants, where as to one of them the complaint fails to show any knowledge of or connection with it, he is not a proper party, and a demurrer by him should be sustained. Under Codes making a misjoinder of parties plaintiff a ground of demurrer, when such misjoinder appears upon the face of the complaint, the objection must be taken by special demurrer, and if not so taken it is waived; it cannot be raised under a demurrer interposed, upon the ground that the complaint does not state facts sufficient to constitute a cause of action.9 But a misjoinder of parties plaintiff, which does not appear upon the face of the complaint, may be pleaded in the answer, and be made a ground of nonsuit against all the plaintiffs.10 If a cause of action is shown, objection to the misjoinder of parties plaintiff cannot be taken by demurrer, unless such misjoinder was a ground of demurrer when the issue was framed." A demurrer for the misjoinder of parties, which does not show wherein there is such misjoinder, will be overruled.12 Where a plaintiff brings suit in his individual right, and also in his representative capacity, as executor, a demurrer to the complaint on the ground of misjoinder of parties plaintiff will be sustained.13 Where certain parties defendant are improperly joined, advantage of the misjoinder cannot be taken by the defendants properly joined, when the former disclaim all interest in the subject-matter of the litigation, and their disclaimer is acted upon by the court and accepted by the plaintiffs.14 1 Neil v. Trustees etc. 31 Ohio St. 15, 20. 2 See Cal. Code Civ. Proc. 430, subd. 4; Utah Code, 292, subd. 4; Nev. Code, 40; Mont. Code, 86; Colo. Code, 51; Ga. Code, (1882) 4192; Idaho Code, 232; Wyoming Code, 285; Rowe v. Bacigalluppi, 21 Cal. 633. 3 See N. Y. Code Civ. Proc. 488, subd. 5; 2 Ohio Rev. Stats. 5062, subd. 4; Enos v. Leach, 18 Hun, 139. That there is a misjoinder of parties defendant is not a ground of demurrer in New York: Fish v. Hose, 59 How. Pr. 238. And see Nichols v. Drew, 94 N. Y. 26. 4 See Dean v. English, 18 Mon. B. 132; Fry v. Street, 37 Ark. 39; Ind. School District v. Ind. School District, 50 Iowa, 322; White Oak Township v. Oskaloosa Township, 44 Iowa, 512; Roose v. Perkins, 9 Neb. 304; Hoard v. Clum, 31 Minn. 186; Hill v. Marsh, 46 Ind. 218; Great Western Compound Co. v. Etna Ins. Co. 40 Wis. 373; Marsh v. Waupaca Co. 38 Wis. 250. So in New York and Ohio, as it respects misjoinder of parties defendant: Palmer v. Davis, 28 N. Y. 242; Richtmeyer v. Richtmeyer, 50 Barb. 55; Fish v. Hose, 59 How. Pr. 238; Clark v. Bayer, 32 Ohio St. 299; Powers v. Bumcratz, 12 Ohio St.. 273; Neil v. Trustees etc. 31 Ohio St. 15. Misjoinder of unnecessary parties is a mere matter of surplusage under the North Carolina Code: Burns v. Ashworth, 72 N. C. 496; Davidson v. Elms, 67 N. C. 228. 5 Richtmeyer v. Richtmeyer, 50 Barb. 55. Board of Supervisors, 38 Wis. 250; Willard v. Rumsey v. Lake, 55 How. Pr. 340. And see Marsh v. 6 Lewis v. Williams, 3 Minn. 151, 154. And see Nichols v. Drew, 94 N. Y. 22. 7 Belknap v. Caldwell, 83 Ind. 14. 8 Gillam v. Sigman, 29 Cal. 637; Tennant v. Pfister, 51 Cal. 511, 515; Green . Taney, 3 Pacif. L. Rep. 423; Learned v. Castle, Sup. Ct. Cal. 3 West C. Rep. 154. And see Enos v. Leach, 18 Hun, 139. 9 Tennant v. Pfister, 51 Cal. 511. 10 South Fork etc. Co. v. Snow, 49 Cal. 155. That misjoinder of parties plaintif cannot be taken advantage of unless the objection was raised in the court below: See Long v. De Bevois, 31 Ark. 480; Weil v. Simmons, 66 Mo. 617. 11 Smith v. Rathbun, 22 Hun, 150, 157. 12 Fultz v. Walters, 2 Mont. 165; Berney v. Drexel, 33 Hun, 419; 19 N. Y. Week. Dig. 515; Irwine v. Wood, 7 Colo. 477. 13 Dias v. Phillips, 59 Cal. 293. 14 Pfister v. Dascey, Sup. Ct. Cal. 3 West C. Rep. 303. |