Andrews v. Mokelumne Hill Co.

         The appellants' counsel, on rehearing, virtually admits that the judgment should be affirmed, unless the non-joinder, of which he complains, was taken advantage of by demurrer, or plea in abatement; and he is driven to the necessity of urging, that in the answer there is to be found something that may be considered either a demurrer or a plea, as the exigency of the case may require.

         The statute enumerates six distinct causes of demurrer, and declares that " the demurrer shall distinctly specify the ground upon which any of the objections to the complaint are taken, or it may be disregarded."

         But when it is remembered that there is an allegation in the complaint--that defendants have settled with Cadwallader for the portion coming to him from the joint-contract, and are still indebted to Andrews in the amount sued for--we understand this clause to be exactly what it was intended to be, and as it was treated on the trial, viz: a joining of issue upon the allegations in the complaint, that the defendants had agreed to sever the joint-contractors, and settle with each for his separate portion.

         When the defendant raises an issue of law and one of fact, he is entitled to have the issue of law first disposedof. To refuse him is error in the Court--not to ask it is to waive it upon the part of counsel.

         If the ancient rule concerning non-joinder of parties be altered, as the appellants admit it is by the statute, and it is now necessary to take the objection by demurrer or by plea, let us ask, what is the object and purpose of the change? Surely, it is to enable the plaintiff, upon judgment against him on that point, to amend his complaint.

         But how is this end answered, if the defendant is to be permitted to avail himself of some ambiguous words, stuck into the middle of his answer, which he is pleased to call a demurrer?

         How can an issue of law be raised without something significant of a request to have the judgment of the Court upon it? To sum up on this point; the question of non-joinder of Cadwallader as plaintiff, was either raised in the Court below, or it was not. If not, the appellant admits it cannot be raised here; if raised below, as the record does not show, what became of it? It is rather to be presumed to have been waived, than that it was decided erroneously by the Court.

         JUDGES: Murray, C. J., delivered the opinion of the Court. Terry, J., concurring.

         OPINION

          MURRAY, Judge

         This case was decided at the January Term, and an opinion rendered reversing the judgment below. A rehearing was afterwards granted, and the case now comes before us for final adjudication.

         The simple question presented for our consideration on the former trial was, whether there was a non-joinder of parties plaintiff or not; it being contended that the fourteenth section of the Practice Act had introduced a new rule, and that one of several parties might maintain an action, on a joint-contract in his own name, by simply suggesting the impossibility of obtaining the consent of the others to join in the action.

         Upon examination of this section we were satisfied that it was intended to apply to suit in equity, and not to actions at law. Although we understood that the whole case was submitted on this one point, it turns out upon a re-argument that the non-joinder was not taken advantage of, either by plea or demurrer, and that the point was never raised in the Court below.

         This case may be said (without any disrespect to the counsel for the respondents) to be a fair illustration of a most pernicious practice which has sprung up among the bar in many instances, of presenting cases without that care and examination of the record which is necessary to a correct understanding of the case, and afterwards trusting to the indulgence of the Court by way of a petition for a rehearing. In fact, so common has the practice become, that the idea that a re-argument will be granted as a matter of course seems generally to obtain, and petitions are filed in almost every case that is decided. I have had occasion to observe in the last two years that the best, and in many instances, the only arguments which were made in cases before us, were in the form of petitions for rehearing. Such a practice does great injustice to the bar and the Court, and frequently imposes upon us double labor, besides giving to the decisions a seeming contradiction.

         We have taken this occasion to allude to this subject not for the purpose of drawing invidious distinctions between members of the profession, but because the whole bar seems to have fallen into the practice, and we wish to announce that, for the future, we will be less indulgent in such cases.

         To proceed, however, with the case. The fortieth section of the Practice Act, among other grounds of demurrer, specifies that the defendant may demur to the complaint when it appears upon its face that there is a defect of parties plaintiff or defendant. Section forty-four provides, that if the matters enumerated in section forty do not appear on the face of the complaint, they may be taken advantage of by answer; and section forty-five provides, that unless such objection be taken either by answer or demurrer, the defendant shall be deemed to have waived the same, except the objection to the jurisdiction of the Court, and that the complaint does not state facts sufficient to constitute a cause of action.

         In this case, the objection, if any, appeared upon the face of the complaint, and the defendants should have taken advantage of it by demurrer.

         It is contended that that portion of the answer which alleges that the debt sued for, if due at all, is due to Cadwallader and Andrews as partners, should be treated as a demurrer. If this was intended as a demurrer, it certainly was a very awkward way of bringing it to the notice of the Court; it is included in the answer, and seems to be a continuous portion of the same. If it was intended as a demurrer, it does not conform to the statute, which requires that it should distinctly state the grounds of objection. Besides this, no Court could properly sustain such pleading, or uphold a kind of hybrid answer, half demurrer and half plea, with nothing to designate where the one left off and the other commenced.

         The most natural supposition is, as the complaint contained an allegation that the parties, Cadwallader and Andrews, had divided their claims against the defendants, and that they had paid Cadwallader, that that portion of the answer already referred to was meant to traverse this allegation. We may, perhaps, be mistaken in this; but if we are, it would make no difference, for the record does not show that this matter was passed upon by the Court below, either as a demurrer or plea in abatement, and the necessary intendment must be that the objection was waived.

         Judgment affirmed.