Schultz v. Winter

By the Court, Whitman, J.: In this case a demurrer was taken- to the amended complaint of appellants, and submitted to the then presiding judge of the district court. An order overruling the same was made by him on the thirty-first day of December, 1870, which was filed on the seventh day of January, 1871, after the expiration of his term of office. Subsequently on motion, the court, his successor presiding, set aside such order, heard and tried the issue of law, and sustained the demurrer. This action is claimed as error, and it becomes necessary to pass upon that question; for if error, the whole phase of the case is changed. The trial of an issue of law is a court proceeding; the order made therein, if a final judgment, may be entered in term or vacation, and if anything less, may probably be also thus entered; but such an order, made in vacation, can have no vitality until at least it be [133] delivered to the clerk for filing. That was not done, in this case, until the official term of the judge signing the same had expired, and when his authority had ceased; so, in effect, there never was any order. Therefore, the court had power to hear the demurrer anew, as was done. The demurrer, among other points, raises substantially the objection that the complaint is multifarious. The complaint states that the sev,eral appellants had diverted from its natural channel and appropriated to their own use, separate portions of the waters of a creek flowing through their lands; that they had so appropriated, diverted, and used, for irrigating and other useful purposes, one, a hundred and fifty inches, another fifty inches, and so on; that subsequent to such appropriation, the respondents had absorbed nearly the entire waters of said creek, and thereby damaged appellants in the sum of twenty-two hundred dollars in the past; that the prospective damage of the present season would be thirteen thousand dollars; that the respondents threaten the continuance of such absorption ; wherefore, a judgment for damages is prayed, and a perpetual injunction against the wrongful acts recited, and a settlement of the various rights of appellants, by a general decree. It has been said, by many courts, that it is a somewhat intricate question to decide, when or not a complaint is objectionable for multifariousness; but it would be more difficult to suggest a pleading open to such objection, if this is not. The complaint not only fails to show any community of interest between the plaintiffs, but clearly negatives any common interest. They are all holding adversely the one to the other, by separate distinct claims of appropriation. They ask, not that the waters of the creek may flow over their lands in their natural channel, but that each appropriator may divert, use, and dissipate certain specified portions thereof. In that it differs from the case of Reed v. Grifford, 1 Hop. Ch. 416, where a preliminary injunction was ordered in favor of certain riparian owners, the court there saying: “ The rights of the general complainants to their respective lands are indeed distinct; but the grievance in question is a common injury to all the complainants. The water in its natural descent from the lake becomes the property of each of the complainants successively; all the complainants thus have right [134] in the same subject; and the nature of the case forms a community of interests in the complainants.” The case at bar is more nearly analogous to the case of Marselis et al. v. Morris Canal Banking Company, 1 Saxton Ch. 31, and may well be governed by the rule laid down, which clearly expresses what a court of equity will not allow in cases of this kind. “ The court will not permit several plaintiffs to demand, by one bill, several matters perfectly distinct and unconnected, against one defendant ; nor one plaintiff to demand several matters, of distinct natures, against several defendants. And according to this principle, I feel constrained to say that the bill cannot be sustained. There is no kind of privity between those complainants; there is no general right to be established as against this defendant, except the general right that a wrong doer is liable to answer for his misdeeds to the injured party; which surely does not require to be established by such a proceeding as this. The utmost that can be said is, that the defendant stands in the same relative position to all these complainants. There is no common interest in them all, certainly, in the point in issue in the cause ; which is the rule in 2 Anst. 469. Nor is there any general right claimed by the bill, covering the whole case; which is the principle adopted by Lord Ridesdale, vide ante. Chancellor Kent’s rule is quite as broad as any authority will warrant; but it is not broad enough for the case now before the court. It requires that a bill against several persons must relate to matters of the same nature and having a connection with each other, and in which all the defendants are more or less concerned, &c.” And so, because the case came within the scope of no existent authority, nor of any rule which could be established upon principle, it was dismissed. So here, for the same reason, there was no error in sustaining the demurrer and dismissing the bill. The order and judgment of the district court are therefore affirmed.