OF THE JOINDER OF CAUSES IN ONE COMPLAINT IN A CIVIL

ACTION.

§32. General rule. It is generally true, that where there are several causes of action of the same nature, between the same parties, all accruing to the plaintiff in the same right, and against the defendant in the same character or capacity, they may all be joined in several paragraphs of the same complaint (at the common law, in several counts in the same declaration).

$33. Changes by the code; causes which may be united enumerated. The provisions of the code are substantially the same as the rules obtaining before its adoption, with a few variations and additions; they are essentially as follows: The plaintiff may unite several causes of action in the same complaint, where they are included in either one of the following classes: 1. Money demands on contract. 2. Injuries to property. 3. Injuries to character. 4. Claims for the possession of personal property, with damages for the injury or detention thereof. 5. Claims for the possession of real property, with damages for the detention thereof; to make partition of and to determine and quiet the title to real estate. 6. Claims to enforce specific performance of contracts, and to avoid contracts for fraud or mistakes. 7. Claims to foreclose mortgages, to subject to sale real property upon demands against decedents' estates, when such property has passed into the possession of heirs or devisees (who claim the same adversely), or their assigns; to marshal assets, and to substitute one person to the rights of another; and all other causes of action arising out of contract or duty, and not falling within either of the foregoing classes; but causes of action so joined must all affect all the parties to the action and not require different places of trial.' The action upon a money demand on contract, in the statute, means any action arising out of contract where the relief demanded is a recovery of money.'

$34. Joinder of causes-an innovation. When the cause of action arises out of contract, the plaintiff may join such other matters in his complaint as may be necessary for a complete remedy and a speedy satisfaction of his judgment, although such Id. 313, § 797.

12 R. S. (1876) 69, § 70.

other matters fall within some one or more of the classes already enumerated.1

$35. The last section anomalous-the construction of its provisions. The last provision is in every way anomalous; what is really intended, it is difficult to determine, but under it, the supreme court has held it competent where A, being indebted to B, conveys his lands to C, to defraud B, for the latter to bring his action against A to recover the debt, and in the same complaint to join C as defendant, charge the fraudulent conveyance, and, if a proper case is made out, to take judgment against A for his debt, and a decree setting aside the conveyance and subjecting the lands fraudulently conveyed to the payment of the judgment in the same action. This is, however, extending the construction of the provision a great way, for it not only sanctions the joining of an action for the recovery of money with one in the nature of a bill to set aside a fraudulent conveyance, and permits the joinder of a judgment for the recovery of money with a decree subjecting property to its payment, but it violates both the rule of the common law and that laid down by the code, that the causes joined must affect all the parties to the action. And although this construction is sustained by the supreme court, it rarely obtains in practice, and would perhaps produce more inconvenience than benefit, if generally applied.

§36. Consequence of a misjoinder. The rules laid down in the code in reference to the joinder of causes are concise and comprehensive, and need little explanation or illustration. The consequences of a misjoinder of causes of action will be noted hereafter, but it may be proper to state at this point, that while a misjoinder of causes, that is, the uniting of several causes of action in the several paragraphs of the complaint which cannot properly be joined, is a radical fault, yet there is another fault in pleading, seemingly similar to it, with which it must not be confounded, namely, the fault known as duplicity.

§ 37. Duplicity. Duplicity in a complaint, as the term implies, consists in joining in one paragraph several grounds of action of the same or different natures, for the enforcement of the same

1Id. 70, § 72; Wood v. Outram, 29 'Love v. Michals, 11 Ind. 227. Ind. 177.

right. This is but a fault in form, and, under the code, can only be taken advantage of by motion.'

$38. Where suits unnecessarily multiplied, they will be consolidated and costs taxed against plaintiff. Where the plaintiff brings several suits in the same court, where one would have sufficed, as where all the causes of action are by and against the same parties, and where they could have been properly joined, all having matured when the first action was brought, the court will consolidate them, and will charge the plaintiff with the excess of costs made by the several suits, where the same are improperly multiplied. And even where they are not consolidated, the costs of the additional suit unnecessarily brought will be taxed to the plaintiff.

1 Booher v. Goldsborough, 44 Ind. 449; Hendry v. Hendry, 32 id. 349. 21 Tidd's Prac. 614.

CHAPTER V.

OF THE PLEADINGS OF THE DEFENDANT.

§ 1. First steps in pleading, demurrer or answer.

2.

A demurrer defined.

3.

4.

Difference between demurrers under the code and at the common law.
Changes by the code.

5. Grounds of demurrer to the complaint.

6. Demurrer for misjoinder sustained, and action docketed.

7. Objections apparent on the complaint may be raised by demurrer.

8. Demurrer sustained, complaint may be amended.

9. Faults formerly made grounds of special demurrer now reached by motion. The office of the answer compared with similar pleadings under the former system.

10.

13. Distinction between dilatory and peremptory pleas-how far abolished by the code.

14. Dilatory answers and answers in abatement enumerated.

15.

16.

Answers in abatement of the writ will not lie.

An answer in abatement for that which appears on the face of the complaint will not lie.

17. Answer setting up nonjoinder and misjoinder.

18. Nonjoinder and misjoinder continued.

19. How far nonjoinder or misjoinder may be objected to under the general denial.

20. Answer of another action pending.

21. English rule on the subject disregarded.

22. Rule in suits in state and federal courts having concurrent jurisdiction over

the same territory.

23. Federal and state courts continued.

24. Where action brought before cause of action occurs.

25. Form of answer in abatement.

26. Answer of former action must be verified.

27. Consequence of the successful interposition of an answer in abatement in practice.

23. How judgment is rendered in the determination of a dilatory answer or one

in abatement.

29. The distinction between answers in abatement and those in bar still main

tained.

$30. Some of the common law learning is still retained on this subject. 31. The issue of fact.

32. Modes of pleading by the defendant.

33. Issues all special under the code, though pleading may be general.

34. The general denial not the general issue.

35. The general denial has none of the latitude of construction of the general issue.

36. Denial of the execution of assignment of a writing sued on, necessary to put the plaintiff upon the proof of execution.

37. What may be proved under the general answer of non est factum.

38. Special non est factum.

39. Of special answers.

40. Special answer what, is one which confesses and avoids.

41. Matters not denied in the answer, admitted.

42. Special answer, a concise statement of the facts constituting the defense. 43. Special answer further discussed and defined.

44. Set-off and counterclaim.

45. Cross complaints.

46. Certainty in an answer.

47. Statutory special defense.

48. Rules of pleading applicable to answer at common law.

50. Answer must meet and controvert the gravamen of the whole action. 51. If two defendants join in an answer, it must be good as to both or it will be bad.

52. Answer may be to only part of the complaint, but must be in terms limited or it will be bad.

53. Where answer purports to be to the whole complaint, and answers but part, if it leave any part unanswered, it is bad.

54. Allegations by way of inducement or in aggravation cannot be answered. 55. All the facts must be stated except where dispensed with by the code: Instance, general averments of conditions precedent.

56. Answer should contain names of parties and term of court, but no formal commencement or conclusion is necessary.

OF ANSWER PUIS DARREIN CONTINUANCE.

57. Introductory.

58. Form and substance of this answer same as original answer.

59. Cases where demurrer lies in general.

60. Demurrer to the answer.

The

§1. First steps in pleading, demurrer or answer. plaintiff having filed his complaint, and brought the defendant into court by the usual means (which will be more appropriately discussed under the head of practice), the defendant, having appeared to the action, may demur or answer. If the complaint,