Glover v. Remley , 52 S.C. 492 ( 1898 )

The opinion of the Court was delivered by

Mr. Chiee Justice McIver.

This is an appeal from a decree or order of his Honor, Judge Benet, refusing a motion, submitted by the appellant, to make the complaint “more definite and certain, by compelling the plaintiff to arrange the three causes of action stated therein into distinct causes of action, stated separately, viz: the one for partition, the second for recovery of real estate, and third for compensation from the Charleston and Savannah Railroad Company for right of way;” and also requiring the plaintiff “to elect upon which of said separate and distinct causes of action she intends to proceed, and that the one chosen shall stand, and all others be struck out of said complaint.” The allegations of the complaint are sufficiently stated in the decree of the Circuit Judge (which should be incorporated in the report of this case) for the purposes of this inquiry. It is very manifest from these allegations that no claim whatever is made against the appellant except for compensation, since the death of the life tenant, for the use of the right of way for its railroad, which it obtained and is still enjoying under some arrangement with the life tenant, Erancis Y. Glover; what interest or concern the appellant has in the claim against some of the defendants for the surrender of portions of the land in their possession, or in the claim against others of the defendants for partition, it is impossible to conceive, and certainly is not made apparent by any of the allegations of the complaint. So, also, it does not appear that those of the defendants who are alleged to be in possession of the land, and from whom the complaint seeks to recover possession, have any interest or concern in the claim which the plaintiff makes against appellant for compensation for the right of way which it is now using. Nor is it clear that those of the defendants (the heirs at law of Mrs. Grace and of her deceased husband) who are conceded to be cotenants with the plaintiff, have a similar interest to that of the plaintiff in the compensation for the use of the right of way, inasmuch as the plaintiff claims as remainderman under the will of Joseph Glover, while the Graces claim -as assignees of the other remainderman, Francis Y. Glover, jr. But if they have a similar interest with the plaintiff, then, under sec. 140 of the Code, they should have been joined -as plaintiffs, or a reason stated in the complaint why they were not so joined, and no such reason appears in the complaint.

It seems to us, therefore, that this is a case in which the plaintiff has attempted to unite in a single complaint a separate and distinct cause of action against the appellant alone, with other separate and distinct causes of action against the other defendants, with which appellant has no concern; and that it was precisely such a case as entitled the appellant to require that the cause of action against it should be separately and distinctly stated, so that appellant might intelligently plead thereto. It seems to us that the decree of the Circuit Judge must be reversed.

We desire to add, that we consider it premature to consider now the question dwelt on in the argument as to the right of the plaintiff, or of the other cotenants, to claim compensation from the appellant in this or any other form of proceeding. That question cannot properly arise until the claim against appellant is separately and distinctly stated, and the appellant has an opportunity of properly pleading thereto. Nor are we to be regarded as considering or passing upon the rights of any of the other defendants, who have not appealed from Judge Benet’s decree.

The judgment of this Court is, that the judgment and order appealed from be reversed.