Pfister v. Dascey
Before: Thornton
Synopsis
Pleading—Misjoindeb oe Causes oe Action.—Where a purchaser of real estate at an execution sale brought an action to set aside certain conveyances alleged to have been made by the judgment debtor in fraud of creditors and purchasers, and to recover possession of the property, held, that there was no misjoinder of causes of action.
Id.—Misjoindeb oe Parties.—And where it was also sought in the same action to have an adverse claim determined, and the defendants against whom such relief was demanded disclaimed all interest in the property, and the disclaimer was accepted by the plaintiff and acted upon by the court, held, that the judgment should not be reversed by reason of the misjoinder.
Id.—Assignee in Insolvency.—In an action by a purchaser at an execution sale, to set aside a conveyance alleged to have been made by the judgment-debtor in fraud of creditors and purchasers, and to recover possession of the property, the assignee in insolvency of the judgment debtor is a proper party defendant.
Id.—Pleading—Adverse Claim.—In an action to determine an adverse claim to land, an allegation that the plaintiff is informed and believes that the defendant claims some interest in the land, is insufficient.
Jury Trial—Waiver. —If the parties to an action go to trial without demanding a jury, the right to a jury trial is waived.
Thornton, J. —This action was brought by plaintiffs claiming as purchasers and owners of ca parcel of land, by virtue of a sale on execution issued on a judgment regularly recovered against defendant John Dascey, to set aside certain conveyances executed by said Dascey and by others claiming under him, as fraudulent and void against the plaintiffs as creditors and purchasers, and to recover possession of the parcel of land above mentioned.
The complaint was demurred to by defendants, John Dascey;, Teresa Dascey, John W. Smith, and John McCallum, on the following grounds: —•
“1. That the same does not state facts sufficient to constitute a cause of action against these defendants, or either of them.
[404]“ 2. That there is a misjoinder of parties defendant in this, that John MeCallum, IN’. E. Harris, assignee of the estate of John Dascey, an insolvent, Max Greenburg, Alex. Peers, and Henry Walters, August Walters, and Charles S. Fecheimer, doing business as copartners, under the style and firm name of ‘ Walters & Fecheimer,' John Doe and Eichard Eoe, and each and all of them are joined as defendants in this action.
“ 3. That thrée causes of action, to wit, an action to annul and set aside as fraudulent certain conveyances from John Dascey, one of the defendants herein, an action under section 738 of the Code of Civil Procedure of this State, to determine adverse claims to the real property described in said complaint, and an action of ejectment to recover possession of said land with the rents and profits thereof, have been improperly united and joined in one statement without being separately set forth as distinct causes of action.
“4. That said amended complaint is ambiguous, unintelligible, and uncertain in this: That it cannot be told therefrom with reasonable certainty whether the action is brought to set aside certain conveyances from the defendant John Dascey, in. said complaint mentioned, or is an action under section 738 of the Code of Civil Procedure of this, State, to determine an adverse claim to the property therein described, or is ejectment to recover possession and rents and profits of said property.
“ 5. That plaintiffs have not legal capacity to sue.”
The demurrer was overruled.
It is urged that the demurrer should have been sustained on the grounds numbered two (2), three (3), and four (4).
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