JOHN TENNANT, WILLIAM A. SENTER, WILLIAM A. SENTER, Executor of the Last Will and Testament of W. CENTER, deceased, JAMES McLELLAN, HENRY W. COTTLE and GEORGE SMOUT v. ADOLPH PFISTER and JOHN BALLACH, 51 Cal. 511

By the Court: 1. If upon the face of a complaint there appear to be a misjoinder of parties plaintiff, the objection must be taken by special demurrer, and if not so taken, it is waived. Under a general demurrer, upon the ground that the complaint does not state facts sufficient to constitute a cause of action, a question of misjoinder of parties plaintiff cannot be raised. (Gillam v.

Sigman, 28 Cal. 637.) Upon the former appeal in this case it appeared that a demurrer to the complaint on the ground that there was a misjoinder of parties plaintiff therein had been overruled, and that the defendant had thereupon pleaded the general issue, and set up certain new matter in bar of the action. At the trial, which led to that appeal, the court, upon motion of the defendant, excluded all the evidence of the plaintiffs on the ground that there was a misjoinder of parties plaintiff on the face of the complaint.

This, we said, was not proper practice, and that the demurrer on that ground having been overruled, the case should have been disposed of, as though no such demurrer had been interposed, unless the court should first set aside its order overruling the demurrer, and permit it to be again presented for consideration. This was the entire scope of the decision then made here, and the counsel for the respondent is therefore mistaken in supposing that upon the former appeal we determined, either actually or by implication, the sufficiency of the complaint in any respect.

The determination here upon that appeal, concerned only the question of practice in the respect referred to. (Tennant v. Pfister, 45 Cal. 270.) 2. Upon the return of the cause to the court below, the action was again tried, and judgment rendered for the plaintiff. The present appeal is taken from the judgment, and the principal point relied upon is that the court improperly overruled the demurrer to the complaint for misjoinder of parties plaintiff. The demurrer should have been sustained. The plaintiffs seek a joint recovery of moneys, in which they have no joint interest.

The plaintiff Tennant, for instance, has no interest in a recovery for the use and occupation of lot 47, detained not from him, but only from his co-plaintiff, McLellan; nor has the plaintiff Cottle any interest in a recovery for the use and occupation of lot 52, detained from the plaintiff Tennant. The case of Fowler v. Frisbie (37 Cal. 34), is decisive of this case. Judgment reversed and cause remanded, with directions to sustain the demurrer to the complaint.