New v. Smith
Emelia New, Robert H. Clogston, as Trustee of Emelia New, a Convict, John Stowell and S. P. Nold, Partners doing business under the firm name and style of Stowell & Nold v. J. A. Smith and H. M. Brown
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Opinion of the Court
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Per Curiam:
Plaintiffs’ petition contained two causes of action. With some stretch of liberality in construction, we may say that the first states an action in ejectment for the recovery of certain real estate, in behalf of all the plaintiffs. We have greater difficulty in determining that the second cause states facts sufficient upon which to base any claim for relief; but allowing that it does, it would be for ■equitable relief to set aside a deed obtained through fraud, duress, or undue influence. It contains no allegation what•ever warranting the giving of any relief to any of the plaintiffs except Emelia New.
A demurrer on several grounds was interposed to this petition. One ground was that different causes of action were improperly joined therein. The court below sustained -the demurrer, and this action is now assigned as error.
We find no warrant in our statutes for the joining of these causes of action. Section 83 of the code (Gen. Stat. 1901, §4517) permits the joinder of legal and equitable causes of. action in several clauses of the same petition, where such actions arise out of the same transaction or are •connected with the same subject-matter; but the causes of action so united must affect all the parties to the action, ■except in actions to enforce mortgages or other liens. It is therefore clear that the interest of Emelia New in the ■ejectment, stated in the first cause of action, joined, as it is, with the interests of all the other plaintiffs, would not warrant her in joining with that cause of action a second one, in equity, to set aside a deed in which she alone is interested. It may be that the pleader thought he was stating facts •connecting all of the plaintiffs in this second cause of ac-iion, but a very cursory reading of it will show how far he ■failed in doing so.
*808 The demurrer was properly sustained upon the ground here commented upon, by which we do not mean to say,, however, that it may not have been properly sustained on several other grounds pleaded.
The judgment will, be affirmed.
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