Lopez v. Townsend , 37 N.M. 574 ( 1933 )

This action was brought under Compiled Statutes 1929, section 36-101, by plaintiff (appellant), widow of Venceslao Lopez, who, it is claimed, was killed through the negligence of the defendants, Townsend Scenic Stages, Inc., in operating a stage coach between the cities of Santa Fe and Roswell, by striking him with such coach as he was walking in the highway near the city of Santa Fe, driving a team of horses. A defendant, American Fidelity Casualty Company, was surety on the bond of the other defendants as provided by article 10, chapter 11, Compiled Statutes 1929 (section 11-1001 et seq.).

To the plaintiff's complaint, demurrers were filed by the respective defendants; such demurrers being in most particulars the same. The grounds of the demurrer, briefly, were that two causes of action had been improperly joined in the said complaint, to wit: a cause of action sounding in tort against the defendant Townsend and the Scenic Stages, Inc., with a cause of action in contract against the defendant American Fidelity Casualty Company; that there is a misjoinder of parties defendant in said complaint, in that the American Fidelity Casualty Company is improperly joined as a party to a cause of action against the other defendants sounding in tort, as to the commission of which tort it is not alleged said defendant American Fidelity Casualty Company was a party; that there is a misjoinder of parties defendant, in that the defendants Townsend and Scenic Stages, Inc., are improperly joined as parties defendant in a cause of action in contract upon an alleged policy of insurance alleged to have been executed by the American Fidelity Casualty Company, and which the complaint affirmatively shows was not executed by either of the defendants Townsend or Scenic Stages, Inc.; "That said complaint fails to state sufficient facts to constitute a cause of action against this defendant for each of the following reasons: [Here follow seven reasons assigned.]"

The trial court on the 12th day of January, 1932, ordered that the demurrers of each of the said defendants be sustained, and further ordered: "That the plaintiff herein shall further plead in this cause if she so desires, within 20 days from and after this date."

On the 30th day of January, 1932, the plaintiff filed a written request for specific rulings on the demurrers, and that said cause be not dismissed under any conditions as to the defendants Townsend and Scenic Stages, Inc., the said request being as follows:

"Comes now the plaintiff in the above entitled and numbered cause, and prays the Court to state specifically his ruling on each ground of demurrer set up by each of the defendants in their respective demurrers, which the Court sustains, and each ground of demurrer, if any which the Court overruled.

"The plaintiff further requests the Court that in case, for any reason, he holds that the defendant, American Fidelity Casualty Company, is not a proper party defendant, or that no action could be maintained against it in this suit, then that he do not dismiss this action against the other defendants, but only as to the defendant, American Fidelity Casualty Company."

On the 19th day of February, 1932, the court considered said request, and announced:

"Being of the opinion that the ruling heretofore entered herein on said demurrer is sufficiently explicit;

"It is therefore ordered by the court that the request for specific rulings on demurrer, and the said cause be not dismissed under any conditions as to the defendants Charles T. Townsend and Scenic Stages, Inc., be and the same is hereby in all things denied, to which rulings and each of them the plaintiff excepts."

On the 30th day of January, 1932, there was filed by the plaintiff a notice that plaintiff will not further plead, the said notice being as follows: "Comes now the plaintiff in the above entitled and numbered cause and states to the court that upon the Court's refusal to announce specific decision on the several grounds of demurrer set out in the several demurrers of the defendants and upon the Court's statement that he will dismiss this cause of action as to all parties, the plaintiff announces that she will not further plead herein, but will stand upon her present pleadings."

On the same day there were filed exceptions to the order of the court sustaining demurrer of the defendants. Among the other exceptions were to the court's failure and refusal to state the ground upon which it decided the demurrer. On the 19th of February there was filed a paper entitled "Amended Exceptions to Order of Court Sustaining Demurrer," which again excepted to the court's failure and refusal to state the ground upon which the court decided the demurrer.

On the 19th day of February, 1932, the plaintiff filed objections and exceptions to the proposed judgment to be entered in this cause, among which objections was:

"That, assuming that there was a misjoinder of causes of action, authorizing the dismissal of said cause as to the defendant, American Fidelity and Casualty Co., the only order that can be entered is a dismissal as to it, and not a judgment on the facts that have never been tried.

"That, assuming that there was a misjoinder of causes of action, judgment against the plaintiff in favor of the defendants, Townsend and Scenic Stages, Inc., should not be entered as though said cause had been tried upon the facts; nor should it be dismissed as to said defendants, because a full and complete cause of action has been set out against them and the court was not authorized to dismiss such cause as to them."

On the said 19th day of February, the court entered judgment: "Now, therefore, on motion of the defendants, it is considered, ordered, and adjudged that the plaintiff, Andrellita Sandoval de Lopez, do have and recover nothing from the defendants, or either of them in this cause, and that said defendants do have and recover of and from the plaintiff, their costs of suit herein, to which the plaintiff in open court objects and excepts upon all of the grounds set out in plaintiff's objections and exceptions to the entry of this judgment herein, and upon all of the grounds upon which her exceptions to the overruling of the two demurrers to plaintiff's amended complaint herein, as set out in written exceptions filed in this cause."

The plaintiff appealed from the judgment, and relies for reversal upon 17 points stated in her brief. Many of these points go to the merits of the various grounds of the demurrers which were sustained by the trial court. Points 7 and 8 present a procedural question which, in our opinion, is of sufficient importance to require a decision. They are thus stated:

Point 7. The plaintiff on request was entitled to specific rulings on the demurrer so that in case it was sustained on the ground of misjoinder of causes of action she could make application for a division of the actions.

Point 8. Where there is a general demurrer on the ground that a complaint does not state facts to constitute a cause of action, and also a special demurrer on the ground of misjoinder of causes of action, and the court sustains the demurrer generally and refuses to state whether or not it was sustained because of misjoinder of causes of action, it will be presumed that the demurrer was sustained because of the insufficiency of complaint.

Point 7 presents the proposition that the plaintiff was at least entitled to be advised as to whether or not the demurrer had been sustained upon the ground of misjoinder of causes of action, in order that, if she were so advised, she could make a motion to divide the actions as provided by section 105-604, Comp. St. 1929. The material portion of said statute is as follows: "If the demurrer be allowed for the reason that causes of action have been improperly united, the court may in its discretion, and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned."

Statutes similar to ours exist in a number of jurisdictions, and have been construed in several. In section 223 of Bancroft's Code of Pleading it is stated: "Where a complaint is demurred to generally and also upon the ground of misjoinder of causes of action, it is the duty of the court, it has been held, to pass upon the latter ground of demurrer even though it holds that one of the causes of action is insufficient; if the court sustains the demurrer upon such ground, it should so state, so as to enable the plaintiff to file several actions, and if it fails to do so, it will be presumed on appeal that the demurrer was sustained because of the insufficiency of the petition."

In Bennett v. Preston, 17 Ind. 291, three causes of demurrer were assigned: (1) Want of sufficient facts to constitute a cause of action; (2) misjoinder of causes of action; (3) misjoinder of defendants, in this, that there were too many defendants. The trial court sustained the demurrer generally and dismissed the suit. On appeal the Supreme Court said: "As to the second ground of demurrer, if valid, it was not cause for dismissal of the suit, but only for the docketing of the causes as separate actions."

In Nebraska, the statute being similar to ours, the court in Alexander v. Thacker, 30 Neb. 614, 46 N.W. 825, decided: "Where a demurrer is sustained on the ground of nonjoinder of parties defendant, the court should not dismiss the action without giving the plaintiff an opportunity to bring in the absent party."

The Supreme Court said that there was a nonjoinder of parties defendant, but added: "Such defect, however, was not sufficient grounds for dismissing the suit without giving an opportunity to bring in the holder of the legal title. The plaintiff should have been ordered to bring in the absent party, within a time to be named by the court; and, in default thereof, the suit be ordered dismissed."

In Neun v. B.H. Bacon Co., 137 A.D. 397, 121 N.Y.S. 718,720, the court, considering demurrers which had been interposed by each defendant on the ground that several causes of action were improperly united, said:

"Section 497 of the Code of Civil Procedure provides:

"``If a demurrer to a complaint is allowed because two or more causes of action have been improperly united, the court may, in its discretion, and upon such terms as are just, direct that the action be divided into as many actions as are necessary for the proper determination of the causes of action therein stated.'

"The authority in pursuance of this section has been several times exercised. Roehr v. Liebmann, 9 A.D. 247, 249,41 N YS. 489; Myers v. Lederer, 117 A.D. 27, 30,101 N.Y.S. 1088.

"The Code of Civil Procedure, therefore, preserves to a plaintiff his causes of action where it is held on demurrer that they are improperly united, so that he is not obliged to commence anew. If important, he is in the same condition as if the demurrer had been overruled so far as the defense of the statute of limitations is concerned."

The Supreme Court of Oklahoma in Goldsborough v. Hewitt,23 Okla. 66, 99 P. 907, 138 Am. St. Rep. 795, construing a statute similar to our section 105-604, decided that the court has no right to summarily dismiss the action without giving the plaintiff an opportunity to proceed under this section.

In Whitely v. St. Louis, E.R. W.R. Co., 29 Okla. 63,116 P. 165, 167, the court said: "We are therefore of opinion that the petition states facts sufficient to entitle plaintiffs to a new trial, and that the demurrer should have been overruled; that is, unless, as is contended, the court was right in sustaining the demurrer to the petition on the ground of misjoinder of causes of action. But we cannot infer that the court so held for the reason that we have several times declared it to be the duty of the court, where a demurrer is sustained on that ground, to so state in order to afford plaintiffs an opportunity to file several petitions, as provided by Wilson's Dig. Okla. § 4296. Failing so to do, as we cannot presume error on the part of the trial court, we cannot presume his ruling was upon that ground. In Chauncey A. Owen et al. v. City of Tulsa et al. [27 Okla. 264], 111 P. 320, speaking to a demurrer there, as here, interposed to a petition on the ground of misjoinder of causes of action, we said: ``Had the court sustained it upon the ground of misjoinder of causes of action, it would have been the duty of the court to so state at the time in order to afford plaintiff's counsel an opportunity to move to be allowed to file separate petitions each to include such of said causes of action as might have been joined, and had them each docketed, pursuant to section 92 of chapter 66 of the Code of Civil Procedure, Statutes of Oklahoma 1893. Goldsborough v. Hewitt, 23 Okla. 66 (99 P. 907 [138 Am. St. Rep. 795]); Weber et al. v. Dillon, County Treas., 7 Okla. 568 (54 P. 894). As the court made no such indication and counsel were therefore afforded no such opportunity, it is but fair to presume that the court sustained the demurrer upon the third ground, which is that the petition fails to state facts sufficient to constitute a cause of action.'"

In 49 C.J. Pleading, § 556, discussing decisions on demurrer in general, it is said that it is not necessary that the ground on which the ruling is made be specified. Two Florida cases were decided at the 1908 term, Hoopes v. Crane, 56 Fla. 395,47 So. 992; Gainesville, etc., R. Co. v. Peck, 55 Fla. 402, 46 So. 1019. The 1909 Florida Legislature enacted the following statute: "That the judges of the several courts of the state of Florida, before whom are argued demurrers and motions on any pleading in their several courts, shall briefly state in writing which grounds of the demurrer or motion are sustained, and which grounds are overruled." See Florida Acts 1909, c. 5912.

A similar statute exists in Connecticut. See Conn. Gen. Stats. 1930, § 5666.

In Johnston v. Smith, 86 N.C. page 500, a case cited to the C.J. text, the court said: "The exception taken by the defendant to the refusal of His Honor to specify in his judgment which of the causes of demurrer were sustained, is not tenable. We know of no law or rule of practice which required the court to do so, while we admit such a practice would be convenient to the party demurring and the saving of labor to the appellate court."

The C.J. text continues: "Although it has been held otherwise when the demurrer is sustained for misjoinder of actions" — citing Whitely v. St. Louis, etc., R. Co., supra.

We are in sympathy with the ideas of convenience expressed by the North Carolina Supreme Court, supra. Comp. St. 1929, § 105-412, declares: "The demurrer shall distinctly specify the grounds of objection to the pleadings; unless it does so, it may be disregarded."

This is designed for the convenience of the party whose pleading is assailed and of the court deciding upon the sufficiency of the pleading. The rationale of the statute suggests the benefits of an indication by the court as to which of the grounds of the demurrer are sustained and which grounds are overruled. However, we do not now deem it proper to go any further in this direction than the Legislature has gone.

Our statute is a plain mandate to the court to state whether he sustains or overrules a demurrer made upon the ground that "Causes of action have been improperly united." Where a duty is imposed upon the court, which affects a right of a litigant, it is error to refuse to perform such duty.

It is suggested by appellee that appellant has waived the error by laches, in that she elected to stand on her complaint prior to asking for the specific rulings. We do not so understand. While the formal order overruling the request for specific rulings on the demurrer was entered February 19, 1932, it appears that some indication of the position of the court was made prior to the entry of said order, because in the notice by plaintiff of her intention to stand upon her complaint she stated that she was doing so "upon the Court's refusal to announce specific decision on the several grounds of demurrer set out." And, in her exceptions to the action of the court filed on the same day of her election to stand, she excepted to the refusal of the court to state the ground upon which he decided the demurrer.

We do not regard the statement of the court that he was of the opinion that the ruling theretofore entered on the demurrer was sufficiently explicit as in any way tending to cure the error. Such ruling was not as explicit as the statute demands.

True it is that, if the court sustains the demurrer upon the ground "that causes of action have been improperly united," the court is vested with a discretion as to the course of proceedings thereafter to be taken. But the plaintiff was not given the opportunity the statute affords to invoke this discretion. It is no answer to say that plaintiff had an opportunity to amend after the demurrer was sustained by dividing her causes of action if more than one were pleaded. She was entitled under the statute to be informed by the court as to whether she had improperly united more than one cause of action. By her point 7 appellant urges a reversal. By point 8 she seeks the benefit of a presumption that the court did not sustain the ground of the demurrer challenging the complaint for misjoinder of causes as suggested by the decision in Whitely v. St. Louis, etc., R. Co., supra. The question of whether one cause of action is presented by the complaint or if there are two causes of action pleaded therein improperly seems from an examination of the briefs and from the oral argument to be the central question in the case, and we do not think it would be appropriate to presume that the court overruled this ground of the demurrer, and thus avoid deciding this important question.

Orderly procedure dictates that the judgment be reversed and the cause remanded, with direction to comply with the statute as herein construed, and it is so ordered.

This disposition is somewhat similar to that taken in Morrow v. Martinez, 27 N.M. 354, 200 P. 1071. We call the attention of the parties to section 2 of rule X of rules of appellate procedure.

WATSON, C.J., and SADLER, HUDSPETH, and ZINN, JJ., concur.