Wilson v. St. Paul, Minneapolis & Manitoba Railway Co.

Gilpillan, C. J. Appeal from an order sustaining plaintiff’s demurrer to one of the defences in the answer. The complaint charges a conversion of a wooden building belonging to plaintiff, standing on land belonging to another, but which had been leased to plaintiff for a term which had expired shortly before the alleged conversion. The defence demurred to assumes to plead a former action pending. It states “that plaintiff claims that the alleged conversion was caused by an alleged interference with and obstruction of an alleged sewer or drain extending from said tract of land to the public sewer,” etc.» and “that, at the time of the commencement of this action, there was and still is another action pending in this court between the same parties as in this action, in which the claim for recovery is based upon the same alleged obstruction of said alleged sewer; and the alleged damage or conversion to recover for which this action was brought, grew out of, and was part and parcel of the injury resulting from,, the alleged obstruction of said sewer, in said prior action. ” An answer of a former action pending ought to clearly allege or show that the cause of action in the first action is identical with that in the second. This answer falls short of that. The appellant seems to-assume that, because the claims set forth in the two actions grew out of the same act, they are necessarily but one cause of action. This, is an error. Different causes of action may arise from the same act» [446] as, for instance, a cause of action for injury to the person, and one for injury to property; or a cause of action for injury to real property, and one for injury to personal property. This answer does not show the character of the cause of action in the first action. Order affirmed.