Hartford Mining Co. v. Home Lumber & Coal Co. , 61 Nev. 1 ( 1940 )

ON THE MERITS July 2, 1941. 114 P.2d 1091. OPINION Respondent, as plaintiff, commenced an action in the First judicial district court, Storey County, against appellant, George Drysdale, Howard W. Squires, H.W. Squires, Jr., and John Doe and Roe Corporation as defendants. Four causes of action were joined in the amended complaint, which will be referred to herein simply as the complaint. The first and second causes of action were for the foreclosure of mechanics' liens against certain mining property leased by defendants Drysdale, Squires and Squires, Jr., from the owner, defendant Hartford Mining Company. These liens were filed to secure payment for merchandise alleged to have been sold by plaintiff to said lessees. The third and fourth causes of action were for the recovery of other sums of money (not secured by lien) alleged to be due plaintiff, on two open accounts, for the sale of other merchandise direct to the owner.

Defendant Hartford Mining Company, the only defendant who appeared in the action, demurred to the complaint upon the ground that several causes of action had been improperly united therein, and upon the further ground that there was a misjoinder of parties defendant. The demurrer was overruled, and no answer was filed to the complaint. After the time for answering had expired, default was entered, and thereafter judgment by default was awarded plaintiff on the first and second causes of action only. This appeal is from that judgment, and is upon the judgment roll alone.

1, 2. Appellant contends that the trial court erred in overruling its demurrer. Respondent argues that appellant was in no position to object to a misjoinder of parties, for the reason that the complaint states a cause of action against appellant, and the latter's interests are not affected by the misjoinder of other parties as defendants. With respect to the other ground of demurrer, that several causes of action were improperly united, respondent not only fails to cite any authorities justifying the uniting of the first and second causes of action with the third and fourth causes, but does not even specify any subdivision of sec. 8595 N.C.L. 1929, under which the first two causes of action could properly be united with the other two. Several causes of action may be united in the same complaint only when authorized by said section. Conceding that the first and second causes of action could be properly united in the same complaint and that the third and fourth causes could have been properly united in a separate complaint, this court is satisfied that the four causes could not lawfully be united in the same complaint, and that the demurrer should have been sustained.

Respondent, however, contends that such error was not prejudicial to appellant and not, therefore, ground for reversal. In support of this position, respondent cites sec. 8622 N.C.L. 1929; Paterson v. Condos, 55 Nev. 260, 30 P.2d 283; Strohecker v. Mutual B. L. Ass'n, 55 Nev. 350, 34 P.2d 1076; Barcellos v. Gompertz, 49 Nev. 326, 245 P. 700; Marks v. Roberti, 51 Nev. 150,271 P. 467. These authorities are to the effect that errors in pleadings or proceedings will be disregarded when they do not affect the substantial rights of the parties.

3. A number of California, Texas, Iowa, Washington, and Oklahoma cases are also cited by respondent in support of the proposition that even though a demurrer on the ground of misjoinder of causes of action be erroneously overruled, the judgment will not be reversed where demurrer has suffered no prejudice. In these cases the defendants, after their demurrers had been erroneously overruled, answered and went to trial, and it appeared in each case that no prejudice had, or could have, been suffered. But here appellant stood upon its demurrer and did not answer the complaint within the time allowed by the trial court or make any appearance thereafter. Johnson v. Yelverton,31 N.M. 568, 249 P. 99; 5 C.J.S., Appeal and Error, sec. 1687, pp. 864, 865, n. 22; Am. Jur. 575, n. 16. No default judgment could properly be entered under these circumstances without opportunity first afforded appellant to answer the complaint after correction thereof to include only such causes of action as were unitable under sec. 8595 N.C.L. 1929.

4. In support of its contention that no substantial right of appellant has been affected, respondent points out that before the final judgment was entered respondent dismissed the third and fourth causes of action, thus leaving only the first and second causes which were properly unitable under the statute; and as judgment was asked and given on these two causes only, appellant, argues respondent, could not possibly have been prejudiced. If the trial court had sustained the demurrer on the ground of misjoinder of causes of action, the maximum relief to which appellant would have been entitled under such ruling, according to respondent, would have been found in respondent's dismissing its third and fourth causes of action without trial, and thereafter proceeding on its first and second causes of action. Respondent further states that if the judgment in this case should be reversed and the matter returned for a new trial, such new trial would simply result in respondent's obtaining judgment upon its first and second causes of action.

The papers brought here on this appeal included a copy of dismissal by the plaintiff, without prejudice, of the third and fourth causes of action, but that paper was stricken from the record on respondent's own motion. Hartford Mining Co. v. Home Lumber Coal Co., 61 Nev. 1, 107 P.2d 128, 130. All that we have before us on this appeal is the judgment roll, which does not mention or refer in any way to a dismissal of any causes of action. Respondent refers to our opinion in the case last cited where it was stated that the third and fourth causes of action had been dismissed; but even if we could, on this appeal, take cognizance of the fact that the third and fourth causes were dismissed, it would avail respondent nothing, because the dismissal took place after the entry of default, and respondent does not claim that appellant was given any opportunity to answer the corrected complaint.

In arguing that, if the judgment should be reversed and the case returned to the trial court, a new trial would simply result in respondent's obtaining judgment upon its first and second causes of action, respondent apparently assumes that appellant would not answer the corrected complaint and go to trial, but there is nothing whatever in the record to indicate that such would be the case.

The judgment appealed from is reversed and the cause remanded, with direction to the district court to sustain the demurrer in accordance with the views herein expressed and to allow defendant a reasonable time in which to answer the corrected complaint.