The Epworth Assembly v. Ludington & Northern Railway

Fellows, J. (after stating the facts). Counsel have filed most elaborate briefs covering every conceivable phase of the case and in which every possible question which is liable to arise on a hearing is discussed. We shall not consider in advance of a hearing on the merits many of the questions discussed at length by counsel as the only questions necessary to decision are whether plaintiff may proceed with its case and whether it is entitled at this time to an injunction. It is conceded on all hands that the plaintiff has stated a case for some equitable relief. While not conceded by plaintiff it must be held that plaintiff has also stated purely legal causes of action. The trial judge was right in holding that matters of affirmative defense not appearing in the bill must be set up in an answer and are not available on motion to dismiss. Pagenkoff v. Insurance Co., 197 Mich. 166; Vyse v. Richards, 208 Mich. 383. The statute involved (3 Comp. Laws 1915, § 12309) provides that “legal and equitable causes of action shall not be joined.” It is not good pleading to attempt to join them, but the question with which we are concerned is whether a bill should be dismissed which states an equitable cause of action joined with a cause of action triable at law. We think that under the former holdings of this court this question must be answered in the negative. Reliance is placed by defendant’s counsel on the recent case of Wellock v. Cowan, 221 Mich. 58. In that case a large number of cases at law and suits in equity were consolidated by an order of the court. We set aside the order of consolidation. But it should be noted, and here is where that case is particularly applicable to the instant one, that inasmuch as the bill stated grounds for equitable relief we retained the bill and we there said: “For these reasons we are moved to set aside the [596] order of consolidation and injunction. The bill will not be dismissed, as an accounting is prayed for between the bank and Binkle.” It has been held in numerous cases that a bill which sets up any grounds of equitable relief should not be dismissed on demurrer or motion to dismiss. Among them see C. H. Little Co. v. Cemetery Ass’n, 135 Mich. 248; Watson v. Wagner, 202 Mich. 397; Dewey v. City of Flint, 205 Mich. 195; and in City of Saginaw v. Consumers’ Power Co., 213 Mich. 460, we said: “Because the city is not entitled to all the relief it asks it does not follow that it is not entitled to any.” Following the logic of these decisions we think it must be held that plaintiff’s bill having stated grounds of equitable relief should not have been dismissed because it asked for relief it was not entitled to on the equity side of the court. The case of Otto v. Village of Highland Park, 204 Mich. 74, is clearly distinguishable from this case. There another provision of the same section of the statute was involved and it was held that separate and distinct causes of action against different defendants could not be joined where the action was not a joint one. The evidence against one defendant would not be applicable against another and no joint judgment could be rendered. Here there is one plaintiff and one defendant, and but one decree would be necessary. We agree with the trial judge that a temporary injunction should not be granted. So to do would give plaintiff all the relief asked in advance of a hearing. The decree must be reversed and defendant be given the usual time to answer. Plaintiff will recover costs of this court. Wiest, C. J., and McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.