Reed v. Howe , 28 Iowa 250 ( 1869 )

Cole, J.

l. practice : pleading. The order of the General Term must be reversed. The provisions of the Code, authorizing a motion to require the plaintiff to elect upon which count in his petition he will proceed, is applicable when he has stated one cause of action in various divisions or counts. This fact being made to appear by affidavit, the court will require him to strike out all the counts but one, or, failing to prove as many causes as he has counts, will require him to pay all the costs of the whole trial. Rev. § 2934. But this is not applicable to this case.

It is, however, further provided (Rev. § 2846): “ The court, at any time before the defense, shall, on motion of the defendant, strike out of the petition any cause or causes of action improperly joined with others.” The Kentucky Code contains the same provision, and it has there been held that misjoinder of actions is no cause of demurrer; that a motion to strike out is the proper remedy. But the defendant’s motion in this case was not to strike out, but for an order directing the plaintiffs to elect upon which cause of action they would rely. This was the motion the District Court acted upon, and overruled; and the correctness of that action was the only question before the General Term. It was not competent for that court to entertain and act upon a different motion, or to give the relief defendants might have been entitled to, if any, under a different motion.

3_join lev of causes. But let us examine the matter still further, and see if these defendant^ were entitled to any relief as connected with the joinder of causes of action. Upon this subject it is provided (Rev. § 2844): “ Causes of action of whatever kind, where each may be prosecuted by the same kind of proceedings, provided that they be by the same party, and against the same party in the same rights, and if suit on all as to venue may be brought in that county, may be joined in the same petition ; but the court, to prevent confusion therein, may direct albor any portion of the issues joined therein to be tried separately, and may determine the order thereof.”

The cause of action stated in the plaintiff’s petition against Clifton K. Howe as administrator, to compel an accounting, to set aside a fraudulent settlement, to reach the funds of the estate invested in real property, is certainly a cause of action which may he prosecuted by equitable proceedings; and as to the cause of action to set aside the order of the County Court for the sale of the real estate, and the fraudulent sale thereunder, there can be no doubt that it may also be prosecuted by the same kind of equitable proceedings.

Since the two causes of action may be prosecuted by the same kind .of proceedings, there was no improper joinder. The judgment of the District Court was therefore correct, and the order of the General Term must be

Reversed.