MISJOIND ER.' In Pleading. The improp er union of parties or causes of action in one suit at law or in equity.
Of Actions. The joining several demands which the law does not permit to be joined, to enforce by one proceeding several distinct, substantive rights of recovery. Gould, Pl. c. 4, § 98 ; Archb. Civ. Pl. 61; Dane, Abr.
In. equity, it is the joinder of different and distinct claims against one defendant; Adams, Eq. 309 ; 7 Sim. 241; Newland v. Rogers, 3 Barb. Ch. (N. Y.) 432. The grounds of suit must be wholly distinct, and each ground must be sufficient, as stated, to sustain a bill; 5 Ired. Eq. 313. See Larkins v. Biddle, 21 Ala. 252; Nail v. Mobley, 9 Ga. 278; Dunn v. Cooper, 3 Md. Ch. Dec. 46; Robinson v. Cross, 22 Conn. 171.
It may arise from the joinder of plaintiffs who possess distinct claims; 2 Sim. 331; Yeaton v. Lenox, 8 Pet. (U. S.) 123, 8 L. Ed. 889 ; see [1893] 1 Q. B. 771'; but see Brinker hoff v. Brown, 6 Johns. Ch. (N. Y.) 150; More v. Smedburgh, 8 Paige Ch. (N. Y.) 605; or the joinder of distinct claims of the plain tiff in one bill; 2 S. & S. 79 ; Allegany & K. R. Co. v. Weidenfeld, 5 Misc. 43, 25 N. Y. Supp. 71. But it seems that where there is a common liability of the defendants and a common interest in the plaintiffs, dif ferent claims may be united in the same suit; 1 M. & C. 623 ; Nelson v. Hill, 5 How. (U. S.) 127, 12 L. Ed. 81; Robinson v. Guild, 12 Mete. (Mass.) 323. And see 2 Y. & C. 389; Story, Eq. P1. § 536, n.; MULTIFARIOUSNESS.
At law, misjoinder vitiates the entire dec laration, whether taken advantage of by gen eral demurrer; 1 Maule & S. 355; motion in arrest of judgment, or writ of error; 2 B. & P. 424. It may be aided by verdict in some cases; 2 Lev. 110; 2 Maule & S. 533; 1 Chitty P1. 188. Where a single count of a complaint contains one cause of action in tort and another in contract, and plain tiff is allowed over objections to introduce evidence to sustain both causes, the error is not cured by plaintiff's election after the trial, to recover in contract only, when the judgment rendered does not limit plaintiff's recovery of costs to those incurred in the action in contract ; v. Bartell, 84 Wis. 209, 54 N. W. 399.
Of Parties. The joining, as plaintiffs or defendants, parties who have not a joint in terest.
In England, under the Judicature Act, 1875, by order xvi. v. 13, no action is to be defeated by the misjoinder of the parties. Different causes of action which cannot be tried together conveniently may be ordered by the court or a judge to be tried sepa rately. Mozl. & W. Diet.
In equity, the joinder of improper plain tiffs is a fatal defect ; Cammeyer v. United German Lutheran Churches, 2 Sandf. Ch. (N. Y.) 186; Clason v. Lawrence, 3 Edw. Ch. (N. Y.) 48; Bowie v. Minter, 2 Ala. 406. But the court may exercise a discretion whether to dismiss the bill; Murray v. Hay, 1 Barb. Ch. (N. Y.) 59, 43 Am. Dec. 773; Gilbert v. Sutliff, 3 Ohio St. 129. It may be dismissed wholly, or only as to a portion of the plain tiffs; Myers v. Farrington, 18 Ohio 72. The improper joinder of defendants is no cause of objection by a co-defendant ; Toulmin v. Hamilton, 7 Ala. 362 ; Bugbee v. Sargent, 23 Me. 269. See North Hudson Mut. Bldg. & Loan Ass'n v. Childs, 86 Wis. 292, 56 N. W. 870.
The objection must be taken before the hearing; Livingston v. Woodworth, 15 How. (U. S.) 546, 14 L. Ed. 809; Trustees of Vil lage of Watertown v. Cowen, 4 Paige Ch. (N. Y.) 510, 27 Am. Dec. 80; not, however, if it be vital ; Winnipissiogee Lake Co. v. Wor ster, 29 N. H. 433 ; by demurrer, if apparent on the face of the bill; Talmage v. Pell, 9 Paige Ch. (N. Y.) 410; Toulmin v. Hamilton, 7 Ala. 362; McMillan v. Baxley, 112 N. C. 578, 16 S. E. 845 ; but see Spear v. Campbell, 4 Scam. (Ill.) 424; by plea and answer; or otherwise ; Story v. Livingston, 13 Pet. (U. S.) 359, 10 L. Ed. 200; where the defect does not appear upon the face of the petition, ob jection must be raised by answer; Crenshaw v. Ullman, 113 Mo. 633, 20 S. W. 1077. A defendant who is improperly joined must plead or demur ; Lyne v. Guardian, 1 Mo. 410, 13 Am. Dec. 509.
At law, see ABATEMENT; PLEADING.
An answer stating facts showing a mis joinder of plaintiffs, but not objecting to the action on that ground is not sufficient to save such an objection; Donahue v. Bragg, 49 Mo. App. 273 ; where no objection is made in the court below to a misjoinder of parties defendant, no advantage can be taken of it on appeal ; Atchison, T. & S. F. R. Co. v. City of Denver, 2 Colo. App. 436, 31 Pac. 240.