SECTION 2. ABOLITION AND CONSOLIDATION OF
FORMS OF ACTIONS.

NEW YORK CODE OF CIVIL Procedure.

Sec. 3339. There is only one form of civil action. The distinction between actions at law and suits in equity, and the forms of those actions and suits have been abolished.*1

BROWDER v. PHINNEY.

SUPREME COURT OF WASHINGTON, 1902.

30 Wash. 74.2

DUNBAR, J.: This is an action for damages for wrongful and forcible eviction from leased premises. Plaintiffs obtained from the defendant, on the 31st day of August, 1899, a contract or lease of two store rooms in Seattle, described, for a term of three years, with stipulated rent, which contract or lease was signed by defendant, Nellie Phinney, through her agent, Daniel Jones, and delivered to plaintiffs. I'laintiffs alleged that they were put in possession of said premises by defendant on October 1, 1899; that they paid rent

"The California Code of Civil Procedure, Sec. 307, provides: "There is in this state but one form of civil action for the enforcement or protection of private rights and the redress or prevention of private wrongs." The various codes of the other states follow, in the main, the language of the New York or California Codes. Burns' Ann. Stat. Ind. (1914) § 249. In some states, however, for example Iowa, while the forms of action are abolished, proceedings may be of two kinds, legal and equitable. Code of Iowa (1897) §§ 3426, 3427. See generally Pomeroy's Code Remedies (4th ed.) p. 5.

In England, the Judicature Act of 1873, § 100, provides: "Action shall mean a civil proceeding commenced by writ, or in such other manner as may be prescribed by rules of court; and shall not include a criminal proceeding by the Crown." The rules of the Supreme Court, order II, rule 1, provides : "Every action in the High Court shall be commenced by a writ of summons, which shall be endorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action." Order I, rule 1, provides that proceedings formerly commenced in the common-law courts by writ, in the court of chancery by bill or information, in the court of admiralty by a cause in rem or in personam, or in the probate court by citation shall be instituted in the High Court by a proceeding to be called an action.

In Massachusetts, there are three divisions of personal actions (1) contract, which includes assumpsit, covenant and debt; (2) tort, which includes trespass, trespass on the case, trover and actions for penalties; (3) replevin. Revised Laws (1902) ch. 173, § 1. No equity suit is to be defeated because there is an adequate remedy at law nor shall an action at law be defeated on the ground that relief should be sought in equity, but the proceedings shall be amendable before final judgment or decree. See Worthington v. Waring, 157 Mass. 421 (1892), Revised Laws (1902), ch. 159, § 6.

In New Jersey, the practice act of 1912 provides: "There shall be but one form of civil action in the courts of common law, which shall be denominated an 'action at law,' but this shall not apply to proceedings upon prerogative writs; provided that subject to rules, a writ of mandamus may be awarded in such an action. The process and pleadings in all actions shall be according to rules of court."

Part of the opinion is omitted.

therefor for the months of October and November of said year to said defendant, and said rent was accepted by said defendant; in short, that they were incommoded during the time of their lease by the improvements which were made upon the premises for the lessors, and were finally, on the 12th day of January, 1900, forcibly evicted from the premises by defendant. At the opening of the trial, defendant's counsel objected to the introduction of any testimony under the complaint, for the reason that it did not state facts sufficient to constitute a cause of action, which motion was denied. At the close of plaintiffs' testimony defendant moved for a nonsuit on the ground that the instrument sued on was invalid, and that the plaintiffs had not shown any facts to take it out of the statute of frauds, and for the further reason that authority in the agent to execute the lease was not shown. This motion was denied by the court. Counsel for defendant then moved the court to instruct the jury to return a verdict for defendant on the ground that a court of law has no power to entertain this suit. This motion was granted, and the case dismissed, the court taking the view that the lease was invalid in law because it was not acknowledged," and that the facts. showing part performance of the contract could be enforced in (equity, but could not be shown in an action at law. )

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45

We think the court erred in dismissing the action. Whether or not the contract or lease was originally illegal, it is not necessary for the purpose of this discussion to determine. But if illegal, a part performance of the contract, either by the plaintiffs taking possession of the premises under the lease or by the payment and acceptance of rent under the terms of the lease, would render the lessor liable for damages for its violation by him; and the court, in holding that part performance could not be shown in an action for damages, lost sight of the rule of concurrent jurisdiction with which courts are clothed, especially under the reformed procedure. Our statute (Bal. Code, Sec. 4793) provides that there shall be in this state but one form of action for the enforcement of private rights and the redress of private wrongs, which shall be called a "civil action"; and this statute evidently means something. It was not intended by this enactment of the law-making power to leave in force or to perpetuate the old distinctions which existed at the common law between legal actions and equitable procedures, so far as the manner of bringing the actions is concerned. It was plainly the intention thereby to abolish such distinctions, and to substitute for all other forms of complaint a statement of facts, for it provides that the complaint shall contain a plain and concise statement of facts constituting the cause of action, and this plain and concise. statement of facts must necessarily be the same (if it is a concise statement of facts) whether the relief or remedy sought by the action be equitable or legal in its nature. In this case, if the plaintiffs had demanded specific performance, the statement of facts on

BROWDER V. PHINNEY

245 which the demand would have been based would have been identically the same statement as that upon which the demand made was based. It is not in accordance with the spirit of the code to turn a litigant out of court, and subject him to the costs and delays of bringing another action before the same tribunal on the same pleadings. If there could be any doubt as to the meaning of the statute in this respect, it is set at rest by the further provision that the defendant may set forth by answer as many defenses and counterclaims as he has, whether they be such as have heretofore been denominated legal or equitable, or both; for it can not be presumed that the legislature intended to make provisions for the determination in one action of legal and equitable rights alleged in an answer, and to preclude the determination in the same action of legal and equitable rights alleged in the complaint. It may not have been the intention of the legislature to abolish all the distinctions which have so long existed between legal and equitable proceedings and the rules. governing them. That question it is not necessary to discuss here. But it was the evident intention to provide for the trial and determination of all rights, whether denominated legal or equitable, in one action, and to relieve from the necessity of a multiplicity of suits to determine controversies between litigants. The superior court is a court of general jurisdiction. It has the power to try either legal or equitable proceedings, having concurrent jurisdiction in both. It is not a law court, nor an equity court, nor a probate court, but it is all the time the superior court of general jurisdiction, empowered to try all these differently termed causes under the title of a civil action; and when it has once acquired jurisdiction of that civil action it may proceed in an orderly way to determine equitable, legal, or probate controversies.

When the court, which has jurisdiction over both equitable and law proceedings, discovered in the complaint the statement of facts which formed the basis of the controversy between the litigants, he should have proceeded to settle the issues, and not have dismissed the plaintiffs out of court and imposed upon them the delays, costs and annoyance of bringing another suit, which would necessarily have been based upon the same statement of facts; for at all times, if the plaintiffs had a cause of action at all, it was based upon the contract or lease, coupled with the part performance alleged. The principle evidently sought by the legislature to be engrafted upon our procedure is intelligently stated by Mr. Pomeroy in his work on Equity Jurisprudence (2d ed.), Sec. 183, where it is said:

"The fundamental principle of this reformed system is, that all distinctions between legal and equitable actions are abolished, the one 'civil action' is the single judicial means of enforcing all rights in a court clothed with both jurisdictions of law and of equity in combination, and in this civil action legal and equitable primary rights, causes of action, and defenses, may be united, and legal and equitable remedies may be obtained. In applying this principle the following results have been well established: Whenever a plaintiff is clothed with primary rights, both legal and equitable, growing out of the same transaction or condition of facts which thus constituted

a cause of action, and is entitled thereon to an equitable remedy, and also to a further legal remedy based upon the supposition that the equitable relief is granted, and he sets forth all these facts in his petition, and demands a judgment awarding both species of relief, the action will be sustained; the court will, in its judgment, formally grant both the equitable and the legal relief.46"

And again in Sec. 87:

"Wherever the reformed procedure has been administered according to its plain intent, the necessity of this double judicial proceedings has been obviated; indeed, if the true spirit of the new procedure is accepted by the courts, such a separation of equitable and legal rights and remedies, and their prosecution in distinct actions, will not perhaps be allowed. The plaintiff brings one civil action in which he alleges all the facts showing himself entitled to both the equitable and the legal reliefs needed to complete his legal right, and asks and obtains a double judgment, granting, first, the proper equitable remedy, and secondly, the legal remedy, by which his juridical position with respect to the subject-matter is finally perfected."

There was sufficient testimony in the case for the consideration of the court or jury on the question of agency and of part performance.

The judgment will be reversed, with instructions to the lower court to try the cause and determine the issues.47

16 But see Disbrow v. Creamery P. M. Co., 104 Minn. 17 (1908), as to the necessity for adopting a theory to control the trial of the case.

47

Where the plaintiff proceeds on the theory that his remedy is by a suit in equity, but his complaint fails to state facts sufficient to entitle him to equitable relief, but does state facts sufficient to entitle him to a money judgment, he will not be dismissed from court, but will be given the relief to which he appears entitled. Donovan v. McDevitt, 36 Mont. 61 (1907); ladden v. McKenzie, 144 Fed. 64 (1906). Compare Barnes v. Quigley, 59 N. Y. 265 (1874); Moore v. Coyne, 11 App. Div. N. Y. 52 (1906). So, also, where in an action based on legal rights it becomes necessary to administer equitable relief, that relief is to be afforded. Trost v. Davis, 31 Ind. 34 (1869); Hall v. Sugo, 169 N. Y. 109 (1901); Madden v. McKenzie, 144 Fed. 64 (1906). See, also, Wright v. Wright, 40 N. Y. 437 (1873); Akin v. Davis, u Kans. 580 (1873); Hall y. Guilford County, 74 N. Car. 130 (4876); De Lacy v. Hurst, 83 Ga. 22 (1889); Whitehead v. Sweet, 126 Cal. 67, 58 Pac. 376 (1899); Todd v. Bettingen, 98 Minn. 17(1906); Kazebeer v. Nunemaker, 82 Nebr. 732 (1908). The federal courts preserve the distinction between actions at law and suits in equity. Armstrong Cork Co. v. Merchants R. Co., 184 Fed. 199 (1910). By act of congress March 3, 1915, equitable defenses may be given at law.

The abolition of forms of action does not, however, alter the substantive rights of the parties. The principles of law and equity remain unaltered. De l'itt v. Hays, 2 Cal. 463 (1852); Smith v. Rowe, 4 Cal. 6 (1853); Reubens v. Joel, 13 N. Y. 488 (1856); Cole v. Reynolds, 18 N. Y. 74 (1858); Wilson v. Green, 135 N. Car. 343 (1904). If a legal cause of action is disclosed, legal principles apply; if purely equitable, equitable principles apply and will control the case. Stevens v. New York, 84 N. Y. 296 (1881); Merrill v. Dearing, 47 Minn. 137 (1891); Fitzsimons v. Drought, 16 App. Div. (N. Y.) 454 (1897); Emmons v. Kiger, 23 Ind. 483 (1864); Cadell v. Allen, 99 N. Car. 542 (1888); Loeb v. Supreme Lodge, 198 N. Y. 181 (1910); Niehaus v. Niehaus, 125 N. Y. S. 1071 (1910); Southern R. Co. v. Howell, 89 Car. 391 (1911). In Britain v. Rossiter, L. R. (1879), 11 Q. B. Div. 126, it is said case

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3.67158972

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ROGERS V. DUHART

247

JOSEPH ROGERS v. JEAN DUHART.

SUPREME COURT OF CALIFORNIA, 1893.

97 Cal. 500.

Appeal from a judgment of the Superior Court of Los Angeles in favor of the plaintiff.

The complaint averred that the executors of Miguel Leonis let and demised to the plaintiff certain lands for the term of eight months beginning February 1, 1891, and thereupon plaintiff took possession, that defendant entered on plaintiff's said described property with cattle and sheep, depastured and destroyed the grass and remained until April 17, 1891. The facts, which were not disputed, showed that defendant had been pasturing cattle on the land, but was notified by the executors to remove them by December 31, 1890; that defendant without the knowledge of the executors or the plaintiff kept his cattle on the land until April 17, 1891; that the land was unenclosed and neither the plaintiff nor any one on his behalf took possession until April 12, 1891, and that plaintiff had been damaged in the sum of $900.48

PATTERSON, J.: The briefs are devoted chiefly to a discussion of the question whether an action trespass quare clausum fregit can be maintained by one who was not in the actual possession of the land at the time the acts complained of were performed. The respondent refers to cases showing that actual possession is not in all cases essential, and the appellant insists that the exceptions are confined to cases in which the plaintiffs were the owners-where the title draws to it the possession for the purpose of redressing injuries to the estate.

It would be a useless thing to attempt to reconcile the cases on the subject. Decisions adhering to the common-law rules of pleading are seldom of any value in determining the sufficiency of a pleading under the code, and sometimes lead to serious departures from its letter and spirit. With us, mere forms of action are cast aside. Every action is now, in effect, a special action on the case. (Jones v. Steamer Cortes, 17 Cal. 487, 79 Am. Dec. 142; Goulet v. Asseler, 22 N. Y. 225; Matthews v. McPherson, 65 N. Car. 189; Brown v. Bridges, 31 Iowa 145.) And the rigid formalism and subtle distinctions found in the rules governing the common-law forms of action are as inapplicable and inane under the modern plan of procedure as the highly dramatic speech, senseless repetitions, and smybolic gestures of the formulae prescribed for the five forms of civil actions by the decemvirs of ancient Rome.

by Lord Esher at page 129: "I think that the true construction of the Judicature Acts is that they confer no new rights; they only confirm the rights which previously were to be found existing in the courts of law or in equity; if they did more, they would alter the rights of parties, whereas, in truth, they only change the procedure."

The facts are abridged from the opinion of the court, a part only of which is printed.