McIntosh v. Alexander , 16 Ala. 87 ( 1849 )

DARGAN, J.

This bill is clearly multifarious. It charges a fraudulent combination between all the defendants in obtaining possession of the slaves, and prays that they deliver up such as they still have in their possession, and account for such as they have sold. It then sets out a contract by which Alexander alone undertook to deliver to Mrs. McIntosh certain slaves, which he has failed to do, and prays separate relief against him, that he deliver them up, or account for their value.

Where a joint claim against severa] defendants is united in the same bill with- a separate claim against one defendant alone, with which the other defendants have no connection, the bill is multifarious. Story’s Pl. § 284, p. 315; Boyd v. Hoyt, 5 Paige, 65. Here the bill seeks relief against all the defendants — first, for a joint tort, and then against Alexander alone, to enforce a contract with which the other defendants have no connection whatever.

The demurrer of Alexander was properly sustained. But as the other defendants did not answer the bill, and a decree pro confesso was taken against them, the question is presented, whether the bill should have been dismissed against all. The general rule is, that a' demurrer for multifariousness, like a demurrer for a misjoinder at law, goes to the whole bill, and if sustained, the bill should be dismissed, and ought not to be made the foundation of partial relief. Gibbs v. Claggett, 2 Gill. & Johns. 14; Johnson v. Anthony, 2 Moloy, 373; Boyd v. Hoyt, 5 Paige, 65.

If there be eases in which an amendment should be allowed after a demurrer is sustained for multifariousness, certainly the application to amend should be made in the court below, and if not made there, it cannot be objected in the appellate cofirt that the bill could be amended. I have not been able to find a case in which an amendment has been allowed after the demurrer was sustained, when the ground of demurrer was the improper joinder of distinct and separate grounds of equitable relief against several defendants, who were not in any manner connected with each other; and as this bill seeks relief against Alexander alone upon a contract, and against all the defendants for a joint tort, there was no error in dismissing the bill as to all. Let the decree be affirmed.

CHILTON, J.

I am of opinion, the bill should have been dismissed, so far as it seeks relief predicated upon the alleged contract between Mrs. McIntosh and Alexander, but not as to the other defendants, who submitted to the jurisdiction, and were in contempt for not answering. Besides, I see np good reason for departing from the practice, more than once indicated by the decisions of this court, of permitting the complainant, in cases like this, to dismiss as to the separate, and proceed as to the joint cause of action. Such amendments save cost and unnecessary delay, and I think are fully authorised by our peculiar mode of proceeding in uniting the demurrer with the answer, and by the liberality with which amendments are allowed .by our statute. Dig. 351, § 37; Marriott & Hardesty v. Givens, 8 Ala. Rep., 694; Hunley v. Hunley, at the last term.