Opinion
March 23, 1904.
Before PURDY, J., Charleston, August, 1903. Affirmed.
Action by Sophia S. Marion against City Council of Charleston. From order overruling demurrer, defendant appeals.
Mr. George H. Moffett, for appellant, cites: 13 S.C. 324; 24 S.C. 475; 29 S.C. 180; 24 S.C. 44; 25 S.C. 513; Pom. on Rem., secs. 775, 456, 457; 42 S.C. 116; 37 S.C. 42; 26 S.C. 480; 8 How., 73; 1 State R., 96; 7 How., 236.
Mr. John R. Bellinger, contra, cites: Code Proc., 188, 463, 476; 48 S.C. 79; 28 S.C. 98; 29 S.C. 407; 13 S.C. 317; 22 S.C. 476; 49 S.C. 95; 64 S.C. 221.
March 23, 1904. The opinion of the Court was delivered by
The question presented by the exceptions in this case is whether a complaint is subject to a demurrer, on the ground it appears upon the face of the complaint that several causes of action have been improperly united, when the allegations are set forth, in form, as a single cause of action.
This question is conclusively settled by the case of Cartin v. R.R., 43 S.C. 221, 20 S.E., 979, in which the Court uses this language: "If two causes of action were set forth in the complaint, without being separately stated, the defendant, it is true, had the right to make a motion, that the complaint be made more definite and certain; or if allegations were made which were unnecessary to sustain the cause of action stated in the complaint, to make a motion to strike out such allegations as irrelevant and as surplusage. Pom. R. R.R., secs. 447, 451. If the defendant waived said objections by failing to make such motions, then the plaintiff had the right to the relief, to which all the allegations showed he was entitled."
The foregoing case shows that a demurrer was not the appellant's proper remedy.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.