In the absence of an amendment to the petition, after the special demurrers on the ground of misjoinder of causes of action and of parties were sustained, the court erred in not dismissing the action.
DECIDED MARCH 6, 1940.
A suit for damages was brought by Mrs. Minnie Rodgers, for alleged negligent homicide of her son, against J. Render Spence and the Metropolitan Casualty Company, his insurer. Spence filed a general and two special demurrers to the petition, one on the ground of misjoinder of parties defendant and the other on misjoinder of causes of action. The court in one order overruled the general demurrer and sustained the two special demurrers, but did not in the order dismiss the action. Multifariousness and misjoinder are subjects of special demurrer only; and if a petition is adjudged to be subject to demurrer on either ground, the plaintiff has the right to elect as to his cause of action or as to the party against whom he will proceed. The record here does not disclose that the plaintiff amended or offered to amend her petition after the special demurrers were sustained. In the absence of an amendment curing the defects in the petition, after the special demurrers were sustained, the court erred in not dismissing the action. The judgment is reversed, with direction that the plaintiff be given an opportunity to amend by electing as to the defendant against whom she will proceed.
Judgment reversed, with direction. Stephens, P. J., andSutton, J., concur.