Ford v. Borders

The sole question presented for decision by this appeal is whether or not the bill as last amended is multifarious. We are of the opinion that the trial court ruled correctly on the demurrer to the bill as last amended.

A bill for partition among tenants in common is not rendered multifarious by seeking an accounting among the tenants in common as for rent or other uses of the common property and for amounts expended thereon by same. The original bill was therefore not multifarious, though probably an accounting should be had only for the time after complainant acquired her interest; but she could well join herself as administratrix, so as to have a full accounting as to the lands sought to be sold for distribution, in order to avoid two suits. But when, in addition to this, and by the same bill, she sought an accounting between herself in her representative capacity and C. S. Borders as to a farming partnership between him and her testatrix, and also an accounting as to matters extending over three or four years, during which C. S. Borders was acting as agent of the testatrix, and as to renting two other tracts of land, the bill was rendered multifarious. These last two matters are not shown to be so connected with or related to the original bill to sell lands for partition and distribution, as to be properly made a part thereof in order that complete equity may be done.

A tenant in common who files his bill for partition in specie, or for a sale of the common property for distribution, may also have an accounting between the tenants in common as to such property, whether it be as for rents, improvements, or otherwise, if it relates to or is connected with the use of the common property. This is necessary in order to avoid two or more suits. But such tenant in common cannot, in such a suit for partition, have an accounting between himself and another of the cotenants, as to matters not so related to or connected with the common property sought to be divided as to be logically embraced in the main accounting.

Even if the parties to the suit for partition are the only parties interested in accountings as to other matters and transactions, those independent matters cannot be joined in one suit.

Moreover, here one of the respondents had no interest whatever in some of these accountings sought between the other two parties, and hence should not be lugged into the suit.

The rules of law as to multifariousness, so far as applicable to this case, have been frequently stated by this court, and may be summarized as follows:

"Multifariousness" is the joinder of distinct and independent matters, thereby confounding them, or the uniting in one bill of several distinct and unconnected matters against one defendant, or the demands of several distinct and independent matters of a distinct and independent nature against several defendants in the same bill.

The decisions as to what constitutes multifariousness are so exceedingly various as to make it difficult, if not impracticable, to educe any general rules by which to test the objection, the courts seeming to regard what is convenient and just in the particular case, always discouraging the objection where, instead of advancing, it would defeat, the ends of justice. 3 Mayf. Dig. 288.

Multifariousness is incapable of exact definition; it is frequently a matter of discretion; every case must be governed by its own peculiar facts, subject to certain equity jurisprudence; in determining this question multiplicity of suits should be avoided, as equity delights to do justice, and not by halves. It is left in a large measure to the sound discretion of the court. Sicard v. Guyllou, 147 Ala. 239,41 So. 474; 6 Mayf. Dig. 318.

Multifariousness is generally understood to infect those cases where a party is brought in as a defendant as to matters with a large portion of which, or with the case made by which, he had no connection whatever. It may be described as a joinder of different and distinct independent matters thereby confounding them, or a uniting in one bill of several matters perfectly distinct and unconnected against one defendant, or the demands of several matters of a distinct and independent nature against several defendants in the same bill. A. G. R. R. Co. v. Prouty, 149 Ala. 71, 43 So. 352; 6 Mayf. Dig. 318.

The joinder of two distinct subject-matters, not having any connection, renders a bill multifarious; but on the sustaining of a demurrer for the misjoinder the proper practice is to afford the plaintiff the opportunity to elect to proceed for one only of the matters of suit. Junkins v. Lovelace, 72 Ala. 302; 3 Mayf. Dig. 291.

"No general rule defining what causes of action may be properly joined and what may not can be laid down. The question is always one of convenience in conducting a suit, and not of principle, and is addressed to the sound discretion of the court. * * * If it appears that the causes of action or claims are so dissimilar or distinct in their nature that they cannot be heard and determined together, but must be heard piecemeal, first one and then the other, a clear case of fatal misjoinder is presented; but where a complainant has two good causes of action, each furnishing the foundation of a separate suit, one the natural outgrowth of the other, or growing out of the same subject-matter, * * * and the suit has a single object, that may be properly joined, and the objection of multifariousness or misjoinder will not be sustained." Ferry v. Laible, 27 N.J. Eq. 146,150, and authorities cited; Singer v. Singer, 165 Ala. 145 -147, 51 So. 755, 29 L.R.A. (N.S.) 819, 138 Am. St. Rep. 19, 21 Ann. Cas. 1102; 7 Mayf. Dig., 289, 290.

We are of the opinion that there was no error in sustaining the demurrer; and the decree appealed from must be affirmed.

There is nothing in this case to bring it within the influence of section 3095 of the Code.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.

Response to Application for Rehearing.