Doan v. Holly

Scott, Judge, delivered the opinion of the court. It would always be well if a party before he commences his suit would determine in his own mind what he is suing for. The neglect of this precaution has involved this proceeding in great irregularity. Was this intended as a suit on the note, or as a proceeding to foreclose a mortgage given to secure the payment of the note, or was it thought' that it would answer for both of these purposes ? If the established construction of the present practice act, which requires that when several causes of action are joined in the same petition, they must be stated in several counts and not all blended together in one count, had not been disregarded, the irregularity of this proceeding would have been glaring. Here are two causes of action united in the same petition. One of these causes of action is against one party, and the other is against the same party and a third person. Notwithstanding the great liberality of the present practice act in relation to the joinder of actions, it is conceived that there is nothing contained in it which gives the slightest sanction to the joining of actions in which the defendants are not the same, not in part but in the whole. The defendant [360] Walker was no party to the mortgage; why then was he brought into court to contest the proceedings under it ? Was he to be subject to the expense of an action in which he had no concern ? Thousands of dollars might hare been spent in this litigation, and if such a course is tolerated as has been adopted in this instance, he would be liable for them. There is but one judgment here and that against both defendants. Being against both defendants, it must be founded on the note, as that is the only cause of action which would warrant a judgment against both of them. Where then is the judgment or authority that will confer a right to sell the mortgaged property ? There was no use in joining an ordinary action on the note with a petition for the foreclosure of the mortgage. Will not the proceedings on the mortgage answer all the ends of both ? If there is service of the process the statute authorizes a general judgment. This, though only irregular and leading to unnecessary length of proceeding, would not constitute a fatal error when the parties to both causes of action are the same; but it is quite otherwise when the defendants are not all the same, and when there is but one judgment against all of them, as in the present case. The judgment will be reversed, that the parties may amend so as to show for which cause of action they are suing, as both can not be-united in one suit. Reversed and remanded; Judge Ryland concurring; Judge Leonard absent.