Loveland v. Garner

Foote, C. The plaintiff brought his action to recover from the defendants seven thousand dollars as liquidated demands for their seven distinct failures to comply with the provisions of a certain act of the California legislature, "in reference to the carrying on and conducting the business of mining. The act referred to is to be found in Statutes of 1880, page 134.

The complaint first filed in'the action contained seven distinct counts upon as many alleged causes of action, [542]each claiming the right to recover of the defendants a penalty of one thousand dollars for their separate failures on the first Mondays of seven different months “to have the reports and accounts current made and posted,” as in the first section of the act provided.

The defendants demurred to that complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and because the causes of action as set out were improperly united with each other. The demurrer was sustained.

The plaintiff then filed an amended complaint, in which was charged in one count seven distinct failures on the part of the defendants, on the first Mondays of as many different months, “to have the reports and accounts current made and posted,” as required by the statute heretofore mentioned. And demand was made for the recovery of a penalty of one thousand dollars for each failure on the part of the defendants to comply with their alleged obligations under that statute.

That pleading also was demurred to, on the ground that it did not state facts sufficient to constitute a cause of action; and that several causes of action were improperly united, and the court sustained the demurrer.

The plaintiff declining to amend his pleading, judgment for costs was rendered for the defendants, and from that this appeal was taken.

The ruling sustaining the first demurrer cannot now be attacked, for the reason that afterward the plaintiff filed an amended complaint, in which he united and pleaded anew in one count all the causes of action which he had in his first complaint pleaded in separate counts, and thus waived his right to object to such action of the court. (Hagely v. Hagely, 68 Cal. 348.)

The further contention of the defendants is, that upon a fair construction of the statute upon which the action was predicated, it will be found to contain no warrant for a recovery of more than one penalty of one thousand