Wood v. Olney

By the Court, Garber, J. We think the complaint shows a cause of action against the Washoe Gold and Silver Mining Company, but none against any of the other respondents. It is contended, that it also shows a cause of action against the Imperial Company; but the case of Paxton v. Bacon Co., 2 Nev., decides the point adversely to appellants. [114] Decisions are cited to show that as all the respondents, except the Imperial Company, demurred jointly, the demurrer was too broad, and should therefore have been overruled as to all. The case in 20 Barb., cited in 19 Wis., would seem to be an authority that, even if, for the reason here urged, the demurrer was improperly sustained as to any of the parties, we should only reverse the judgment as to that respondent against whom the complaint shows a cause of action. But we do not go upon that, for we think this demurrer should have been sustained as to all those joining in it, except the Washoe Company. The cases cited by the appellants are evidently founded upon the analogy supposed to be afforded by the rule that: “ If there be several distinct assignments of breaches, some of which are sufficient and the others not, or if a declaration contain several counts and one only be bad, on demurrer to the whole declaration, the court will give judgment for the plaintiff.” 1 Chitty Pl. 165. But this was not the common law rule; and' it seems it is not the law in England now. At common law, on such a demurrer — that is, one too large as to the matter demurred to — the judgment was, that the plaintiff should recover upon such counts as Avere good, or such breaches as were well assigned, and should be barred as to the residue. Aftenvards, the practice, as stated by Chitty, was borrowed from the courts of equity, and obtained until the simpler and more sensible common laAV practice, of giving judgment on the whole record according to the truth, was restored. Duppa v. Mayo, 1 Saunders, 285 (6), 286, note (9); Pinckney v. Inhabitants, 2 Ib. 379, 380, note (14); Comyns Dig. Pleader, C. (32), Q. (3); Hinde v. Gray, 1 Manning & Gr. 195, note (a); Slade v. Hawley, 13 M. & W. 756. However, the rule that a demurrer too large as to the matter demurred to should be overruled in toto, has been generally if not universally followed in the United States ; and it is not necessary, in this case, to deny that in adopting the common laAV as a rule of decision, we adopted, as part of it, an innovation so sanctioned by time and authority. But, even granting this, it does not follow that the same rule should be applied to a demurrer, good as to one and bad as to others joining in it. It-is said by Chief Justice Spencer, speaking of a joint [115] plea of the general issue, to which the remark is no more apposite than to a joint demurrer, that “ the rule is a very artificial one and ought never to be extended beyond the very cases to which it has been applied,” Higby v. Williams, 16 Johns. 216) and the courts of equity, while recognizing the rule that as to the matter demurred to a demurrer cannot be good in part and bad in part, have uniformly refused to extend it to a demurrer like this — the settled equity doctrine being that a joint demurrer may be sustained as to one defendant and overruled as to another. Mayor, etc. v. Levy, 8 Vesey, 408; Wooden v. Morris, 2 Green’s Chy. (N. J.) 65; Barstow v. Smith, Walker’s Chy. Rep. 897. On this principle alone, the cases cited by the appellants and the somewhat earlier ones upon -which they rest, should have been, in our opinion, differently decided. We infer from the remarks of Lord Eldon, in Mayor v. Levy, that prior to our revolution the, rule invoked was never extended, either at law or in equity, to the case of a joint demurrer too large as inapplicable to some of the parties joining; and so far as we are advised, all the American cases in which it has been so extended are bottomed solely on the authority of very recent New York cases, none of which were decided in or have been approved by the courts of last resort in that state. We see no reason why we should follow this new departure, and we are not inclined to extend so arbitrary and technical a rule further than we are compelled to do by the authority of decisions binding upon us. We are satisfied that, under our statute, the position that the judgment, being joint, must be reversed in toto, if not good as an entirety, is untenable. Tim case of Ricketson v. Richardson, 26 Cal. 149, is in point, and with the views there expressed we fully agree. The judgment should be reversed as to the Washoe Gold and Silver Mining Company, and affirmed as to the other respondents, and the judgment of this court will be entered accordingly. Whitman, J., did not sit in this case.