
    CASE 42 — PETITION ORDINARY
    SEPTEMBER 23.
    Hancock, &c., vs. Johnson.
    
      APPEAL FROM HEKDEItSON CDIOUIT COTOT.
    1. Where two causes of action are improperly united in the petition, the only appropriate mode of making the objection is by motion before defense to strike out the cause of action improperly joined; and all objections to the misjoinder are waived unless thus made. (Civil Code, sections .113, 114.) Where, however, the petition contains but a single cause of action, and an amended petition is offered, which, if allowed to be filed, would create the misjoinder, the objection may be made by an exception to the filing of such amendment.
    2. In an action against the city of Henderson, under the provisions of its charter, for an injury to private property resulting from the carrying out of the laws and ordinances of the city in relation to the construction of public improvements, an amended petition was offered, setting up a cause of action, under the charter, against the municipal officers of the city, in their individual capacity, for the same injury occasioned from their gross negligence and abuse of power — to the filing of which amendment objection ivas made. Held — That as each of the canses of action did not affect all the parties to the action, (Civil Code, section 111,) they conld not be joined, and that the amendment should not have been permitted to be filed.
    The facts appear in the opinion of the court.
    Hughes and Dallam for appellants—
    1. The Civil Code (section 111) only authorizes the joining of several causes in one action “ where each affects all the parties to the action.” The cause of action against the city cannot be joined with that against the mayor and council as individuals. They are distinct and incongruous causes of action. See section 10 of the act incorporating the city of Henderson, approved February 18, 1854, (Session Acts, 1853-4,pp. 372 to 387.) As the misjoinder was created by the amended petition, it was proper to object to the filing of it, and the circuit court erred in allowing it to be filed.
    2. The evidence is wholly insufficient to sustain the verdict.
    3. The court also erred to the prejudice of appellants, in giving and refusing instructions, and in excluding and admitting testimony.
    4. As it was necessary for the mayor and council to do work upon the street, and their duty by law to do so, in order to make it an ordinary public passway, if the work unavoidably damages the lands of an adjacent owner, is it not clearly a case of damage without injury ?
    
    John M. Haul an for appellee—
    1. Under the charter of the city of Henderson, (Session Acts 1853-4,) Johnson could sue the city as a corporation for the injury to his property in “consequence of carrying out the laws and ordinances of the city,” or he could sue the councilmen on the ground of their “abuse of power,” or gross neglect as councilmen. These causes of action affect the same parties, because the mayor and council constitute the city of Henderson. The action is against the city, and also against the mayor and council, not as individuals, but as officials, for gross neglect, &c., in the discharge of their official duties. There was, therefore no misjoinder of causes of action.
    
      2. All objections to the misjoinder of causes of action are deemed to be waived, because, “ before the defense,” the appellants did not move the court to “strike out o'" the petition” the cause of action set up by the amended petition. (Civil Code, sections 113 and 114.) The objection to filing the amendment is not equivalent to a motion to “ strike out of the petition,” which could have been made after the amendment was filed Appel-lee had the right to amend after the demurrer was sustained to the original petition.
    3. Whether the property of appellee was injured by the carrying out of the “ laws and ordinances” of the city, or by reason of the abuse of power, or gross neglect, on the part of the mayor and councilmen, the appellee is entitled to damages ; and the verdict is sustained by the evidence.
    4. The court properly overruled numerous instructions asked by appellants. Those given by the court cover the whole case and are unobj ectionable. No matter what may be the necessity of any improvement by the city authorities, the charter expressly says that the party injured thereby “ shall be paid a just compensation.”
   JUDGE DUVALL

delivered the opinion of the court:

By the 10th section of the act incorporating the city of Henderson, (Session Acts, 1853-4, p. 376,) two remedies are provided for injuries to private property which may result from' improvements to the streets, alleys, market spaces, &c., within the city: First, where the private property of any person may be taken or used by order of the mayor and council for streets, alleys, or other public improvements, or where the grounds, buildings, or other property shall be injured “ as a consequence of carrying out the laws and ordinances of the city,” such person shall be paid a just compensation therefor out of .the city treasury — the damages to be assessed either by a proceeding before the county judge, as prescribed by the act, or by an ordinary action in the circuit court of the county; which proceeding or action must, of course, be against the city of Henderson, as a corporation. Secondly, where the mayor and council of the city shall be guilty of an abuse of their power in making any such improvement, or in doing any other acts, or shall be guilty of gross neglect, they shall be personally liable for the consequences of such abuse of power, or of such gross neglect.

This action was brought by the appellee, Johnson, against the city of Henderson, the persons composing the mayor and council of said city, in their individual capacity, and also against other persons who executed the work complained of. The petition alleges, in substance, that the plaintiff was the owner and occupier of a house and lot on the corner of Main and First cross streets in the city of Henderson; that by an order of the mayor and council, First cross street was graded and improved, and that the work was done in such a manner as to throw large quantities of water on the plaintiff’s lot, in consequence of which his house and out-buildings, in times of flood, are so separated by the water as to cut off all communication; that his garden has been destroyed, and the health of his family imperiled, &c., for which he claims damages, &c. No abuse of power or neglect on the part of the mayor and council, in connection with this improvement, is alleged.

All the defendants to this petition, except the city, demurred, and the demurrer was sustained.

The plaintiff then filed an amended petition, in which he alleges, substantially, that the defendants, who were then the mayor and council of the city, were guilty of gross neglect in failing to keep open certain valleys or gutters which had been constructed for the purpose of conducting the water from above the plaintiff’s lot to the river; that they transcended their authority in letting the contract for improving said First cross street, and that they were guilty of gross neglect in having the work performed under their supervision, whereby he has sustained damages, &c.

The defendants objected to the filing of this amendment; but their objection was overruled. A trial was had, which resulted in a verdict and judgment against the defendants for $ 196, to reverse which they have prosecuted this appeal.

The first and most important objection to the judgment relied upon by the appellants is, that there was a misjoinder of causes of action, occasioned by the filing of the amended petition.

The Civil Code (section 111) provides that several causes of action may be united in the same petition, where each affects all the parties to the action, may be brought in the same county, be prosecuted by the same kind of proceedings, and all belong to only one of the classes enumerated in the succeeding sub-sections.

Now it is perfectly clear that the original and amended petitions in this case each set forth a distinct cause of action. This does not seem to be seriously controverted, and the only remaining inquiry is, therefore, whether each of those causes of action affects all the parties to the action ? The solution of this inquiry depends exclusively upon the provisions of the act before referred to. And according to the admitted construction and import of the 10th section, the city of Henderson is only liable for such consequential injuries and damage as may result to the property-holder from the carrying out of the laws and ordinances of the city in relation to the construction of the public improvements authorized by the charter. For this class of injuries the mayor and council, and other municipal officers, in their individual capacity, can never be subjected to liability. They are liable, and only liable, in cases of gross negligence and abuse of power; and in the latter class of cases the city, in its corporate capacity, is certainly exempt from responsibility : so that the liability of each party is necessarily exclusive. But even if it were conceded that a case of joint liability might arise in some possible contingency, it is clear that no such case is presented by the original or amended petition here. The injury set out in the first is such as resulted from the carrying out of the laws and ordinances of the city in the improvement of First cross street, and for that the city is exclusively liable; that set out in the second is alleged to have been occasioned by the abuse of power and gross negligence on the part of the mayor and council, and for that they are exclusively liable.

It follows, therefore, that the two causes of action do not affect all the parties, and that they were, for that reason, improperly joined.

But it is contended on the part of the appellee, that the record fails to show that the defendants, at any time, moved to strike out the cause of action thus improperly joined, and that their objections to the misjoinder must therefore be deemed to have been waived, according to the provisions of sections 113 and 114 of the Code, which direct that the court, at any time before the defense, shall, on motion of the defendant, strike out of the petition any cause or causes of action improperly joined with others; and that all objections to the misjoinder of causes of action shall be deemed to be waived, unless made as above provided.

The object of the latter section was merely to require that the defendant should signify, of record, his objections to the misjoinder before he filed his defense; and where two incongruous causes of action are united in the petition, the only appropriate mode of making the objection is the motion to strike out. But where, as in this case, the petition contains but a single cause of action, and the proposed amendment would, if allowed to be filed, create the misjoinder, the objection may be as effectually, and much more appropriately made, by an exception to the filing of the amendment. A motion to strike out would, in such case, be absurd.

It results, therefore, that the court below erred in permitting the amended petition to be filed.

The judgment is therefore reversed, and the cause remanded for a new trial, with directions to sustain the objection to the filing of the amended petition, and for further proceedings not inconsistent with this opinion.  