Grant v. McCarty

Cole, J. i pkaoticjeparties of1' oi' action. [471] 2. waiver : arrest. [470] The petition certainly sets forth, facts- sufficient to show that the plaintiffs were, at the least, possessed of the team jointly, and that the defendants interfered with, and deprived them of that possession. "For this they were unquestionably entitled' to maintain their joint action. The other facts averred may be regarded, either as aggravating circumstances attending the interference with their property and possession, in order to enhance the damages; or, as an independent cause of action to each for assault and battery. ’ If the -latter view is taken, [471] which, is the most favorable to tbe defendants, then there was clearly a misjoinder of causes of action. Tbe case was tried and determined before the Code of 1873 took effect; and is therefore governed by tbe provisions of the Rev. of 1860. Section 2846 enacts that on motion of defendants at any time before defense, the court may strike out of tbe petition any cause or causes of action improperly joined with others; and the next section enacts that all. objections to tbe misjoinder of causes of action, shall he deemed waived, unless so made. No such objection was made in this case, and it was therefore waived, and could not be made by motion in arrest. The case of Bhoacls et col. v. Booth, 14 Iowa, 575, was a case of misjoinder of plaintiffs, and does not control this, which, as we have seen, is a case of misjoinder of causes of action. Reversed.