ClIAMBERLAIN t1. MENSING.

669

CHAMBERLAIN fl. MENSING.

(Otrcutt Court, D. South CaroHna. September 1,1899.) 1.
En:CTMENT-STATIliG SEPARATE CAUSES 011' ACTION-MOTJON TO MORE DEII'INITE.

.

.

COHPLAINT

MAu

In an action to recover possession of distinct parcels of land, not contill"uous to each other, where defendant's alleged wrongful entry upon and withholding of one bas no connection with the other, if the complaint fails to state separately the distinct caUses of action as to each parcel, as required by the Code of Civil Procedure of South Carolina, the remedy is by motion to make the complaint more definite and certain, not by demurrer. Westlake v. Farrow, 13 S. E. Rep. 469, 34 S. C.270,

2.

SAME-DAMAlJES II'OR WITlj:lIOLDING POSSIlSSION.

But a claim in such complaint for damages for such wrongful entry and possession need not be separately stated, as suoh damages are not, under the Code, an independent cause of action.

At. Law. Motion to make complaint more definite and certain. Granted. C. B. Northrop, for the motion. Mitchell &- Smith, opposed. SmONTON, District Judge. The complaint sets out that plaintiff is seised in fee of, and entitled to the possession of, "all those two lots or parcels of land situated and lying and being in the town of Summerville, county of Berkley I and state of South Carolina, to Wit, one lot containing three acres, more or less, .between Fourth and Fifth North, Main, and Magnolia streets, being the lots lettered a, b, and c, on square No. 41, in the Map of Summerville, made by C. E. Detmold; and also one other lot, containing three acres, between Railroad avenue and First North and Gum and Loblolly streets, being the lots lettered a, b, and c, on square No.1, on lilaid Map of New Summerville." That the defend;:l.I1t is in the possession of said lands, and wrongfully withholds the same from plaintiff. That he obtained possession by means of a wrongful, fraudulent, and tortious entry thereon, well knowing that he had no title whatsoever to the same, or right of p.Qssession thereof, but with the intent by such wr<;mgfully taking poseession to put plaintiff to his action, believing that plaintiff would not be able to establish a legal title to the same sufficient to recover thereof; although defendant knew that he himself was in no wise entitled to the same. The damages are laid at $1,500. The prayer is for the possession of the premises and for the damages. The defendant asks that the plaintiff be ordered to make his complaint more definite and certain, by separately and distinctly stating the cause of action in reference to the separate parcels of land sought to be recovered, and by separately and distinctly stating the cause of action for damages, actual or punitive, sought to be recovered. The plaintiff objects to this motion in limine, upon the ground that the proper modtl. of seeking relief is by demurrer. We are bound by the decisions.oithe court of South Carolina on this question. The rule in this state iseatablished in the recent decision of Westlake v. Farrow, 34 S.

670

FEDEBAr; i RBPOltTER,.

vol. :5.il..

C. 270, 13 S. E. Rep. 469. That case decides: "Wben a complaint mixes up several allegationsliipprapriate;;totwb distinct causes of action, it seems that a motion to make more definite and certain is 8 better demurrer"" And this course thecoi:Ht prescribes. Mr. the state courts\)'ith to code pleadmg. He prescrIbes the same course. Pom. Rem.§ 447. 'fhe evidelltly refers to two distinct parcels not contlguo,\18 tpe/ld, pther, and. not one tract made up tortiou!! entry upon and unlawful holding of one parcEitwoul<\ have n() relation to or cOnnection with the other. $uch acts would be entirely dil'tinct and separate. Each gives a complete and of ,The>qode of Civil, Procedure permits, in certam instances, ,the union of ,several causes of action in one complaint. This is consolidation of actions. But all of the Codes require that the different causes ofaction should be separately stated. In other words, each must'be set forth in atid distinct division of the complaint or petition, in such a manner that each of these divisions might, if taken alone, be the substance of an independent action. In fact; the whole proceeding is the' combining of several actions into one. Id. § 442, approved in Hellams v. Switzer, 24 S. C. 42. 1 Boone, Code PI. § 184, laysdowll theeame rule: "The c6mphiint in ejectmentmay be for two separate parcels of land.' But the two' causes ofaction Iuust be separately stated; must affect all the parties to the action, and not require different pla.cesofti'ial." . 'Pomeroy (section 446) states, among the forms ofmisjoiuder: "(1) When·different causes Of action, which may properly be unitt-Al,'are alleged in the one com pIa int not distinctly and separately, buticonlbined and n1ingled together in a single statement." The ()bjection of the defendantirt this respect is well taken. A similar conolusion, however, is not reached with respect to his other objection, that the causes· of action for damages, actuaL or punitive, should be separately and distinctly stated.. The causes of action in this complaint are the unlawful entry into and possession of the two tracts of land thereinmentionedl The ·relief soUght is the recovery of the possession,and damages for the character of the entry and of the possession. The damages followed upon the proof ofthe rights of plaintiff. They are enhanced hythecharactet of, and motive for the a.cts, of, the defendant. They are not an:independentcause of action. They are the result of the caUses of action.' The defendant has' confounded the claim for mesne ,profits with 'the .right for damages, The last pUhishes the defendant. The first simply restores to the plaintiff that which the defendant should retum to him. Under the old commoti..law action of ejectment, no mesne or damages·could'h:e recovered. If the lawful owner desired Dlesne profits, hewaB puti to'8separateaction. ,If hewanteddrlmages as for tortious entry, he brought trespass. In South Carolina the action of ejectment fell into .disuse., The adoption of the action of trespass to try title,in which the action was brought, "not only to try title, but {or damages also," superseded ejectment.' In this form of action the jury eould find, as they chose, nominal damages, looking only to the ques·

BAXTER ". 'UNITED STATES OJ'·, AHERICA.

611

tion oftitle, or could treat the action as sounding indamag-es when the evidence of the trespass was ,of such a, character as, to require it. The Code abolished formal differences between actions. .It did not affect the Bubstance of them. Hellams v. Swflur, BUpra. This complaint is, in sub:stance, the old action of trespass to try title; and as in that action, so in thifl, damages are the result of the delicit which justified the action, and the punishment the law inflicts upon proof of it. A formal order will be filed in consonance with this opinion.

BAXTER

".UNITED

STATES

OJ'

AMERICA..

(CirouU OO'Uh't Q/' ..tlppeaz,,:t!}f{Jhth OircuUo

AugU5 G, tBW.)

No. 11'L

,

DlBTllICT A'M'ORNEys-h_ DID FEBlk

Rev. !;It. U. s. 5 824, proVides that Ii district attorney shall be allowed five dolla1'll a day for the time necessarily employed in examining, before a judge or commischarged with crime, and "fat each day of his attendance in l).court of theUnlted States, on the business of the:Unhed States, · * *$5." Section 88,1".1»',o.,V,ide',that, !'whe,n'the C,ircul,',t and, diS,t,rict, courts sit a,t t,he same time,'" he shall be ,allOWed only for attendance on one, court. Beta. that a district attorney wllois in 'attendance upon a federal court, and also on the same day, conducts the 'examination, before a commissioner, of a person charged with crime, 18 entitled to only one per d'!em fee for the day. Under Rev. Bt. 5824, providing tbat the district attorney shall be allowed "for traveling from the place of his abode to thl:! place of holding any court of the United SU\tIls in his district,. * * * 10 cents a mile for going and 10 cents a mile for returning/fl 8 district attorney in attendance on a federal court is not entitled to mileage for going to and returninll from his home during an adjournment over Sunday.

lJ. SAME-MILEAGE.

S. SAME-INTEREST ON ACCOUNTS.

A, distHctattorney is not,entitledt;Q in,l;erest on his accounts for a period intervening between the time of their allowance by the treasury department and the time of tbeir payment.

In Errol' to the Circuit Court of the United States for the District ,of Minnesota. Action by George N. Baxter to recover for services and travel as United States distppt ,attorney. Judgment for plaintiff as to some of the items of his claim, others being disllUowed. A writ of error sued out by defendant was"dismissed on plaintiff's motiqJi. See 51 Fed. Rep. 624. Plaintiff also brings error to review the judgment 8S to the items disallowed. Affirmed. : Statement by SANBORN" Circuit J This was a writ of review aJddgment ()f the United States circuitcourt for the district of Minnesota, rendered in an action brought by the plaintiff in error, who was United States district attorney for that district, from December 11, 1885, until January 11, 1890, to recover for mileal!e,fees, and emoluments, under the provisions of chapter 369, 24 St. at Large, p. 505. In the discharge of his official duties. plaintiff frequently and necessarily attended a pourt of the United States, and conducted ihe examinations before United States commissioners of persons charged with crime on the same days. He was paid five day for, in days, and in this suit sought t.o