Brown v. Calloway

Citations

• 34 Wash. 175
• 75 P. 630
• 1904 Wash. LEXIS 331

Syllabus

<p>Appeal — Notice—Sufficiency—Dismissal. A notice of appeal reciting that appellants -hereby give notice of their application to appeal to the supreme court, is not so defective as to warrant a dismissal in view of Laws 1899, p. 79, § 1, providing that no appeal shall be dismissed for any informality or defect in the notice if the appellant shall, upon order, perfect the appeal.</p> <p>Appeal — Bribes—Assignment oe Errors — Sueeiciency. Briefs will not be struck out and the case affirmed for failure to clearly point out each error, where but one error is relied on, and that is stated clearly at the close of the statement of facts.</p> <p>Ejectment — Quieting Title — Attempt to State Several Causes oe Action — Election Between. Where plaintiffs undertake to state two separate causes of action for the recovery of real estate, one for equitable relief to remove a cloud from the title, without alleging who was in possession, and the other to recover possession alleging that the defendant is in, and unlawfully withholds, possession, it is error to require the plaintiff to elect between the two causes on the theory that the equitable cause is not maintainable without possession, and so is inconsistent with the other, since the first cause does not allege possession in the plaintiff, and it was unnecessary under the statute to split up the action into legal and equitable causes, and in fact but one cause is stated.</p> <p>Pleadings — Attempt to State Several Causes oe Action— Election Between Causes — Remedy Misconceived. Wihere plaintiff endeavors to state equitable and legal causes as separate causes of action, and in fact but one cause is stated,- it is error to require an election and to dismiss the case for failure to elect between the two causes, since a party is not to be turned out of court because he misconceived his remedy, the substance controlling the form of it, and the court should have regarded all the facts stated as one cause, without reference to the err