
    George Chambers, Appellant, v. Henry Oehler, et al.
    
    Pleading: joindicr of causes. A complaint in an action to recover damages for an alleged unlawful arrest for failure to obey a subpena brought against the justice who issued the subpena and the warrant, the parties who served them, the sureties on the official bond of the justice and one who liled an affidavit in reference to which the subpena was issued, which complaint charges in one count oppression, annoyance and extortion, and in another a conspiracy to cheat and defraud, is not, after a dismissal of the suit as to the sureties, demurrable for misjoinder of causes of action and misjoinder of parties, under Code 1873, section 2680.
    
      Appeal from Delaioare District Court. — Hon. J„ J. Tolerton, Judge.
    Saturday, December 18, 1897.
    Action at law to recover for the alleged wrongful arrest of the plaintiff in proceedings intended to punish him for an alleged contempt of court. The defendant Weasel demurred to the petition on two grounds. The demurrer was sustained as to the first ground, and overruled as to the second. The plaintiff elected to stand on his petition as to Wessel, and as to him the cause was dismissed by the court. The plaintiff appeals. — •
    
      Reversed.
    
    
      8. T. Richards, E. G. Perkins, and Arthur A. House for appellant.
    
      Bronson & Carr for appellee Wessel.
   Robinson, J.

The petition contains two counts. In the first, plaintiff alleges that on the fourth clay of July, 189B, the defendant and Oehler, a justice of the peace within and for Dubuque county, issued a subpoena commanding the plaintiff to appear forthwith before him, at his office in Dyersville to testify in a certain suit wherein one Sarah Jane Galloway was plaintiff, and the Chicago, Milwaukee & St. Paul Railway Company was defendant; that on the same day the subpoena was served on the plaintiff by the defendant Wessel; that afterwards, and on the same day, Oehler issued a warrant for the arrest of the plaintiff, and that he was then and there taken into custody by the defendant Meyers, under and by virtue of the warrant, and compelled by Meyers to go with him as a prisoner to the town of New Wine or New Vienna, and through the public streets thereof, before the justice, by whom the plaintiff was then accused of contempt of court, for disobeying the subpoena; that the justice, after denying the plaintiff the rights of counsel and of making defense in his own behalf, adjudged him guilty of the offense charged, and assessed a fine of five dollars and costs against him, which he then paid. The count further alleges that the plaintiff could not legally be required to appear before the justice on the day stated; that no proceeding or trial in which process could lawfully issue was then pending before the justice; that the subpoena and warrant and all proceedings thereunder were wholly without jurisdiction, and the acts of the defendants were willful, malicious, wholly without cause or jurisdiction, and for the purpose of oppressing and annoying the plaintiff, and to extort money from him, in violation of law; that the plaintiff sustained damage by reason of the treatment, indignity, insult, and outrage, in the sum of two thousand dollars; that the justice executed an official bond in the sum of five hundred dollars, with the defendants Gehrig and Freyman as sureties, the conditions of which were broken by reason of the alleged fraud and oppression practiced upon the plaintiff. A copy of the bond is made a part of the petition. The second count is based upon the same transaction, and alleges that the defendants Oehler, Wessel, Meyers, and one M. C. Lane, fraudulently and maliciously conspired and confederated together for the purpose of cheating and defrauding the plaintiff, and obtaining money from him, as fees, unlawfully, by means of the willful and malicious oppression of the plaintiff by Oehler in pretending to act in his official capacity; that, in furtherance of the conspiracy, and as part of the common design, Lane appeared before the justice on the fourth day of July, 1893, and filed with him an affidavit in which Lane falsely and fraudulently pretended and assumed to represent the Chicago, Milwaukee & St. Paul Railway Company, in the capacity of a claim agent, and falsely and fraudulently claimed that it was necessary that papers be served upon the railway company on that day. The averments of the first count are then repeated in substance, and a copy of the affidavit of Lane is attached to the count.

The ground of Wessel’s demurrer, which was sustained by the court, is as follows: “The facts stated in the first and second counts of said petition, and each of them, show that plaintiff is" not entitled to the relief demanded against this defendant, in this, that said counts, and each of them, show upon their face that several causes of action are joined therein against different parties; that each of said counts shows, not only that there is a misjoinder of causes of action, but of parties also.” After the demurrer was filed, but before the ruling thereon was made, the plaintiff dismissed the action as to the sureties Gehrig and Ferguson. Before the action was dismissed as to- the sureties, each count stated a cause of action against Oehler, Wessel, and Meyers, independent of the official bond of the justice, and another cause of action on the bond against the sureties. But one cause of action was stated against Oehler in each count, although the plaintiff had the right to seek a recovery on the bond, or without regard to it, as he should elect. All of the facts upon which the plaintiff relied to. show fraud and oppression contrary to the conditions of the bond were shown by the averments which were designed to state a cause of action against Oehler independent of the bond, and the statements with reference to that added nothing to the averments which showed liability on his part. The prayer for relief applied to both counts., and was in wordsi as follows: “Wherefore plaintiff demands judgment against all of said defendants in the, sum of five hundred dollars, and also judgment against Henry Oehler, Barney Wessel, and Frank Meyers for fifteen hundred dollars in addition to the above sum, with costs.” It will be observed that the prayer as against all of the defendants but the sureties is in precisely the same language, and no ref erence is made therein to the bond. The statements respecting it made in the petition were designed to show that the sureties were liable. The dismissing of the action .as against the sureties did not, it is true, withdraw all references to the bond contained in the petition, but they then became mere surplusage, without legal effect. Section 2630 of the Code of 1873 contained the following: “Causes of action of whatever kind, where each may be prosecuted by the same kind of proceedings, provided that they be by the same party, and against the same party in the same rights, and if suit on all may be brought and tried in that county, may be joined in the same petition.” This is sufficiently broad to permit the j oinder of the two causes of action against Oehler, Wessel, and- Meyers, which are set out in the two counts of the petition.

It follows from what we have said that, after the case was dismissed as to the sureties, there was no misjoinder of causes of action nor of parties,' and that for that reason, if for none other, the demurrer was improperly sustained upon the ground in question. Attention is called to the fact that Oehler was a justice of the peace of Dubuque county, and that, under section 2579 of the Code of 1873, an action on the official bond of a public officer must be brought in the county where the cause of action arose, and that the causes of action alleged in this case arose in Dubuque county. It is said that for that reason Oehler was wrongfully made a party in Delaware county. But the obj ection thus made was not presented by the demurrer, and, as we have seen, when it was sustained, the action was not on an official bond. In view of the conclusions we have stated, it is unnecesssary to determine whether the proper method of presenting the objections upon which Wessel relied was by motion or by demurrer. For the reason shown, the judgment of the district court is reversed.  