The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-12-04

aid sale mined and converted & his
own use valuable ores from said prem
ises.
And thereupon plaintiff prays Judg-
plaintiff and said other tenants In com
mon. declaring each n all Of said
proceedings and orders Of court In re-
gard to the sale of said property, and
the said conveyances thereof, null and
void; and that plaintiff and said other
tenants In common with her be decreed
to be the owners and entitled to the
possession OF all of the said property:
that defendant has no right or title
thereto. and that defendant also ac-
count to plaintiff and said tenants In
common for all ores taken from said
premises.
The second cause Of action set forth
10, In the facts presented and relief
sought. purely an action in equity.
To this complaint defendant has in
terposed a demurrer on the grounds.
hrst. that several causes of action have
been improperly Joined in the COM
plant, l. e., an action in ejectment with
an action in equity, for annullment of
said probate proceedings and cancella-
ton or said conveyance; second. and as
against said second cause OF action set
up in the complaint. defendant demurs.
on the ground of defect of parties. spe-
cifying that said other tenants in COM
mon, naming them, and the adm1nistra-
tor of said estate, into whose hands
has come h purchase price of said
property, should be made parties TO
said action.
The demurrer also asserts the further
ground that the complaint does not
state sufficient facts to constitute O
cause of action. but that ground IL not
urged In the argument and has not been
considered because of h conclusion
reached on other points.
This demurrer has been urged and re-
sisted upon the points of misjoinder.
and defect of parties, by elaborate and
able arguments. In the former course
Of Jurisprudence the joinder OF these
legal and equitable causes would have
been held u~ntenable without any lues-
ton whatever, but the question now
presented Is, first. whether or not II Is
proper to Join such causes under the
modern procedure provided by the codes
and constitution of this state; second,
whether there is a defect in the parties
as alleged by the demurrer.
Upon the subject of administering
legal and equitab BILE remedies in the
same action. the constitution provides
(~article 8. section 2s). Law and equity
may be administered in the same ac-
ton" And by this provision, and those
contained in the code upon the subject
- INV VI Saosto W. - 20 StCllOIl
6I2 there can be no doubt that legal
and equitable remedies may be admin
istered In n and the same action when
found to be applicable in the adjudiea-
ton thereof. Whilst that Is the pres
ent liberal state of judicial procedure.
as compared to former procedure which
kept these two former remedies separ-
ate, and required that they be invoked
in separate actions. and sometimes
through separate tribunals, IL would
still be too broad an assertion to affirm
That lltigants are now at liberty to
join whatever legal and equitab BILE
causes they may desire to unite and
prosecute together: and 1t will be OBJ
served that the constitutional provis-
ion quoted says nothing in respect to
uniting causes legal and equitable. 1t
provides simply that legal and equita-
bic remedies may be administered in
the same action" The code proVides
hat certain kindred classes of causes
may be united and prosecuted in one
action. The causes which may be thus
united are classified In section 672 Of the
Code of Civil Procedure; and, where
several causes are so related as to come
within one of the classes there prescrib-
ed. they may be Joined in the one ac-
ton, and either legal or equitable REM
edies or both such remedies applied in
the adjudication thereof. provided the
several causes affect all OF the parties
to the action.
The question then is. do the causes
united In this complaint fall within any
class designated by the statute as join
able? In my estimation ii cannot he
doubted that two distinct causes of ac-
ton are united in the complaint, IN IL
may be further observed hat in the
first cause OF action set forth plaintiff
ppears to sue in ejectment ~independ-
nnflN and nInnA an hAr o.. kAAalf
and seeks a remedy for herself alone,
and not for others: while in the secon
cause of action plaintiff attempts TO
bring in n to bring before the court
all OF the tenants in common, alleged 10
be interested. and seeks relief on their
behalf as well as her own.
Taking these several causes In view.
and applying section 672 Of the code Of
civil procedure thereto. the court cam
not agree with counse for the plaintiff
that they may be Joined and maintained
together; and the court bases this hold
ing upon the statute classifying causes
which may be Joined.
In many cases the courts Of law have
sought the aid of equity to enable the
law courts to work out complete justice,
and where complete Justice can be OBJ
tanned In an action at law equity re-
fuses to take Jurisdiction: but I know
of no cases or class of cases wherein
equity, with It's superior Jurisdiction
and ample remedies. has sought the aid
of an action at law coupled with the
equity action In order to enable the
equity court to grant complete relief.
Counsel for plaintiff cites a Califor-
mia case which appears to sanction the
Joinder of al action in the nature of
eJectment with an action in equity for
cancellation, but such conclusion IL
stated without pointing out any stat
ute or principle of equity Jurisdiction
upon which il Is based (Pfister VS..
Dacey. 5s Cal. 403). and certainly should
not be followed to the extent of going
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