I concur in the opinion that the -order -appealed from should be reversed, but prefer to base that conclusion on the ground that the motion to strike out -one of the causes of action was not a proper method of procedure. It is clear that respondent by accepting the terms imposed as a condition for permitting the proposed amendment is estopped from questioning the order granting leave to serve the proposed amended complaint. I am of opinion, however, that, when filed, the amended complaint was open to attack up-on any ground which would have been available if the same complaint had been originally served, and that the *555objection on the ground of misjoinder of causes of action was waived by the failure to demur. Subdivision 5 of section 121, Code of Civil Procedure, provides that “the defendant may demur to the complaint when it shall appear upon the face thereof * * * that several causes of action have been improperly united.” Section 125, Code of Civil Procedure, declares: “If no such objection be taken * * * ’ the defendant shall be deemed to have waived the same.” Had a demurrer for misjoinder been sustain'd, appellant would have had the right to elect which cause of action should stand. But this right is denied under the motion to strike one of the causes of action.
CORSON, J. I concur in the views expressed by SMITH, J. HANEY, J., not sitting.