A Practical Program of Procedural Reform providing an elaborate scheme of dis
tinct actions and proceedings.‘0 The Massachusetts Practice Act took the same course, but simplified the system of actions, providing for four only: real actions, contract, tort, and replevin.“
The New York Code abolished all forms of actions and provided for one civil action.u Because the earlier decisions, still adhered to in some states, insisted that the common law actions inhered in nature and could not be done away with, and hence held that a plaintiff was bound irrevocably to the theory
of his case which he appeared to intend to put forward in his pleading, many have asserted that this provision of the
New York Code was a failure..8
But
453
and at every stage thereof, even though they are not all interested in the entire controversy." (4)
Courts should have power in all
proceedings
to
render such
judgment
against such parties before them as the case made requires in point of substantive law, to render difi'erent judgments against difi'erent parties or in favor of some and against others, whether on the same side of the cause or not, and to dismiss some and grant relief against others, imposing costs in case of misjoinder or unnecessary j'oinder upon the party or parties responsible therefor. (5) joinder of causes of action should be permitted although they do not all afl'ect all of the parties to each,subject
the growing tendency today in Code
to the power of the court to order separate
states is to do away with this doctrine of “theory of the case" and carry out
trial or separate prosecution of one or
the spirit of the code.“
In view of
these decisions, it is an anachronism to set up a system of distinct actions at law in 1910. Whenever this is attempted, whether by legislation or, as in some of the code states, by judicial decision, there is always danger that
the new system will outdo the old in rigidity.“ (2) No cause or proceeding should
more of them, if they cannot be tried or prosecuted together conveniently. This is the English practice." The Revised Code of Kansas, which contains
the best provision upon the subject to be found in the United States, permits
free joinder of any and all causes of action subject to the one limitation (except in foreclosure proceedings) that all of the causes of action joined must
"affect" all of the parties to the cause."
fail or be dismissed for want of necessary parties or for non-j'oinder of parties, but provision should be made to bring them
The limitation does not seem necessary. The question is one of convenience.
in.“ (3) joinder of all parties to a com plete disposition of the entire controversy should be allowed in every sort of cause
mit the court to direct a severance or to
Hence it would seem preferable to per direct separate trials, in the interest of convenience and the orderly dispatch
of business, where expedient in particu lar causes.
“Act in Relation to Courts. 51. 5' Pub. Stat. Mass, c. 167, §l. 5’ N. Y. Code Civ. Proc. Q3339. "E. g., 2 Andrews, American Law (2 Ed.). ‘635
VIII. So far as possible, all questions of fact should be disposed of finally upon
8! se,
one trial.‘0
‘4 Vhite v. Lyons, 42 Cal., 279; Rogers v. Du hart. 97 Cal., 500; Cole v. jerman. 77 Conn., 374; Gartner v. Corwine, 57 Ohio St., 246', Cackerell v. Henderson (Kan). 105 Pac. Rep., 443. 5’ See “r. Homblower's remarks quoted in 2 Andrews Am. Law (2 Ed.), 635, note 29. "See Kansas Revised e Civ. Proc., W8, which does away with demurrer-s for misjoinder or defect of parties.
“7 Cf. Mr. Gilbert's amended draft, “184-186, permittin binder in the alternative and joinder in case 0 oubt. These are excellent provisions. “Rules of the Supreme Court, Order 16, rule 11. "Kansas Rev. Code Civ. Proc., 5 88. 00 This principle requires abolition of the second trial of course in ejectment wherever that ana chronism still exists.
