The plaintiff alleged that he was in debt, and applied to W.A. Coleman, as president of the Bank of Columbia, for financial assistance; that Coleman, as president of the Bank of Columbia, on behalf of his bank, contracted to advance the money necessary to relieve his financial embarrassment; that that contract was broken with the fraudulent purpose of throwing on the market plaintiff's property, in order that Coleman and his bank might buy it in at a sacrifice to the plaintiff. The other defendants were made parties on the allegation that the other banks were in control of the Bank of Columbia, and managing its affairs, and hence responsible for its breach of contract.
When the case was called and the jury impaneled the defendants stated that the plaintiff had united three causes of action, one ex contractu and the others ex delicto, and moved that the plaintiff be required to elect on which of the *Page 121 three causes of action he would go to trial. The motion was really a demurrer for misjoinder of causes of action. The wisdom of the provision of the Code of Procedure in requiring such demurrer to be made within 20 days from the service of the complaint is manifest. No notice had been given. The plaintiff was taken by surprise, and utter confusion followed. The objection to a misjoinder of causes of action, not having been taken by demurrer, was not available by mere motion without notice after the trial had commenced.
The ruling affected the whole case, and a consideration of the other questions would be unsatisfactory, and a new trial must be ordered generally.
MR. JUSTICE WATTS disqualified.