proper hearing and determination of the causes of action set forth in the original pleading.1 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. § 444. 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 remedy for a misjoinder, are similar to those of Iowa.3 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 1 New York, § 172; Ohio, § 90; Wisconsin, ch. 125, § 38 (last clause); Nebraska, § 97; Kansas, § 92; Florida, § 122 (last clause); North Carolina, § 131; South Carolina, § 195. Iowa, code of 1873, § 2631. "The plaintiff may strike from his petition any cause of action, or any part thereof, at any time before the final submission of the case to the jury, or to the court when the trial is by the court. "§ 2632. The court, at any time before the defence, shall, on motion of the defendant, strike out of the petition any cause of action or causes of action improperly joined with others." The "defence" here spoken of is undoubtedly the entering upon his defence at the trial by the defendant, and not the putting in his answer. The language of the preceding section plainly points to this construction. "§ 2633. All objections to the misjoinder of causes of action shall be deemed to be waived, unless made as provided for in the last section," - that is, by motion; a misjoinder is not a ground of demurrer. "§ 2634. When a motion is sustained on the ground of misjoinder of causes of action, the court, on motion of the plaintiff, shall allow him, with or without costs, in its discretion, to file several petitions, each including such of said causes of action as might have been joined; and an action shall be docketed for each of said petitions; and the same shall be proceeded with without further service; and the court shall determine, by order, the time of pleading therein." This mode of procedure is simple, and eminently just, and sweeps away a mass of technical defences which still disfigure the pure ideal of the American system in many States For a construction of these provisions, see Hinkle v. Davenport, 38 Iowa, 355, 358; Cobb v. Ill. Cent. R. R., 38 Iowa, 601, 616; Grant v. McCarty, 38 Iowa, 468. 3 Kentucky code, §§ 113, 114; Sale v. Critchfield, 8 Bush, 636, 646. The defendant must move before answer that plaintiff elect between the causes of action, and strike out the others; if no such motion is made, the objection is waived. The same rule prevails as to the misjoinder of parties, which is never ground of demurrer; defendant must move to strike out the improper parties, or else waive all objection. Dean v. English, 18 B. Mon. 132; Yeates v. Walker, 1 Duv. 84. 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.1 § 445. 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.2 § 446. 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. These three cases will be examined in order. 1 Indiana code, § 50. "The defendant may demur to the complaint when it appears upon the face thereof, 5th, that several causes of action have been improperly joined. § 51. When a demurrer is sustained on the ground of several causes of action being improperly united in the same complaint, the court shall order the misjoinder to be noted on the order-book, and cause as many separate actions to be docketed between the parties as there are causes of action decided by the court to be improperly joined; and each shall stand as a separate action; and the plaintiff shall thereupon file a separate complaint in each of the above cases, to which the defendant shall enter his appearance, and plead and go to trial, or suffer a default, in the same manner as in the original action. § 52. No judg ment shall ever be reversed for any error committed in sustaining or overruling a demurrer for misjoinder of causes of action." "§ 54. When any of the matters mentioned in § 50 do not appear on the face of the complaint, the objection (except for misjoinder of causes of action) 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. 2 See supra, § 434. murrer. § 447. (1.) 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, 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 deThis conclusion is based upon the language of the codes authorizing a demurrer for the reason that causes of action "are improperly united in the complaint or petition." 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. The 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.2 § 448. (2.) 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 1 Bass v. Comstock, 38 N. Y. 21; 36 How. Pr. 382, and cases cited; Wood v. Anthony, 9 How. Pr. 78; Hendry v. Hendry, 32 Ind. 349; Mulholland v. Rapp, 50 Mo. 42; Pickering v. Miss. Valley Nat. Tel. Co., 47 Mo. 457, 460; House v. Lowell, 45 Mo. 381. See Wiles v. Suydam, 6 N. Y. Sup. Ct. 292. A different rule formerly prevailed in Missouri, and it was held that the error was not only ground for a demurrer, but even for a motion in arrest of judgment after verdict! McCoy v. Yager, 34 Mo. 134; Clark's Administrator v. Han. & St. Jo. R. R., 36 Mo. 202; Hoagland v. Han. & St. Jo. R. R., 39 Mo. 451; Farmers' Bank v. Bayliss, 41 Mo. 274, 284, per Holmes J. These prior cases, however, are expressly overruled by the more recent decisions of the same court cited above. 2 Nevada, &c. Canal Co. v. Kidd, 43 Cal. 180, 37 Cal. 282; Watson v. San Francisco, &c. R. R., 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. 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. 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 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. 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.+ § 449. 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 quoted in § 444 show that a similar practice exists in that State. 1 Blossom v. Barrett, 37 N. Y. 434, 436; Smith v. Orser, 43 Barb. 187, 193; Mead v. Bagnall, 15 Wisc. 156; Jamison . Copher, 35 Mo. 483, 487; Ashby v. Winston, 26 Mo. 210; Hibernia Savings Soc. v. Ordway, 38 Cal. 679; Lawrence v. Montgomery, 37 Cal. 183. 2 Ashby v. Winston, 26 Mo. 210. 3 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. R., 47 Cal. 87, 89, 90. Truesdell v. Rhodes, 26 Wisc. 215, 219; Bassett v. Warner, 23 Wisc 673, 689, 690; Willard v. Reas, 26 Wisc. 540, 544 ; Lee v. Simpson, 29 Wisc. 333; Cox v. West. Pac. R. R., 47 Cal. 87, 89, 90. 5 Forkner v. Hart, Stanton's code, p. 60; Wilson v. Thompson, ib. p. 60; Hart v. Cundiff, ib. p. 61; Hord r. Chandler, 13 B. Mon. 403; McKee r. Pope, 18 B. Mon. 548, 555; Bonney r. Reardin, 6 Bush, 34; Dragoo v. Levi, 2 Duv. 520; Chiles v. Drake, 2 Metc. (Ky.) 146; Hancock v. Johnson, 1 Metc. 242; Sale r. Crutchfield, 8 Bush, 636, 646; Hinkle v. Davenport, 38 Iowa, 355, 358; Cobb v. Ill. Cent. R. R., 38 Iowa, 601, 616; Grant v. McCarty, 38 Iowa, 468. - - § 450. (3.) 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 the proper practice is implied with more or less distinctness by decisions in several other States.2 § 451. 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 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. 1 Mulholland v. Rapp, 50 Mo. 42; Ederlin v. Judge, 36 Mo. 350; Young v. Coleman, 43 Mo. 179, 184; Cheely's Administrator v. Wells, 33 Mo. 106, 109. And see Pickering v. Miss. Valley Co., 47 Mo. 457; House v. Lowell, 45 Mo. 381. Cary v. Wheeler, 14 Wisc. 281; Burrows v. Holderman, 31 Ind. 412; Lane v. State, 27 Ind. 108, 112; Fritz v. Fritz, 23 Ind. 388, 390; Hibernia Savings 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. |