Stevens v. Chance.

Rothrock, Ch. J. 1. action: misjoinder of causes. I. Section 2630 of the Code provides: “ Causes of action of whatever kind, where each may be prosecuted by the same kind of proceedings, provided they be by the same party, and against the same party in the same rights, and if suit on all may be brought [604] and tried in that county, may be joined in the. same petition.” * '* * * * . Section 26S2 provides: “ The court, at any time before the defense, shall on motion of the defendant strike out of the petition any cause or causes of action improperly joined with others.” It cannot be denied that the petition contains causes of action which cannot be prosecuted by the same kind of proceedings. The action for a judgment is against Wm. Chance alone. It is purely a law action, to be tried by a jury in the ordinary manner, unless a jury be waived. ■ The relief sought against William Chance and Joshua Chance is purely of an equitable character, in tl^e nature of a creditor’s bill, and upon claims not reduced to judgment. The causes of action against William Chance he is entitled to have tried in the county of his residence. The action for judgment on the claims against him is purely personal. The venue of the equitable proceeding is properly in the county where the land lies. Erom these considerations, it is evident that these actions cannot be joined in the same petition. They cannot be prosecuted by the same kind of proceedings; and the suit on all cannot, as a matter of right, be tried in the same county. ■ Whether plaintiff has any remedy to prevent Joshua Chance from conveying the land to an innocent purchaser, before judgment can be obtained against William Chance, is not a question presented for our determination. It may be that, in a proper proceeding, he could be enjoined until the determination of the action at law. II. The equitable cause of action having been stricken from the petition, nothing remained but a purely personal action against William Chance. The court very properly sustained the motion for a change of venue to Washington county. Affirmed.