Dec., 1898.] Opinion of the Court-FULLER, J. TRIPP V. CITY OF YANKTON. Error in sustaining a demurrer to a complaint on the ground that several causes of action are improperly united is waived by plaintiff requesting leave and being allowed to dismiss one of the causes. (Opinion filed December 21, 1898.) Appeal from circuit court. Yankton county, Hon. E. G. SMITH, Judge. On rehearing. Action to cancel a special tax. Defendant had judgment and plaintiff appealed. In an opinion reported in 10 S. D. 516, 74 N. W. 447, the judgment was reversed. In this opinion upon rehearing the former judgment of this court is reversed and the judgment of the trial court affirmed. ent. C. H. Dillon and R. B. Tripp, for appellant. A. H. Orvis, city attorney, and French & Orvis, for respond FULLER, J. In our former decision 10 S. D. 516, 74 N. W. 447 this case, now before us on rehearing, was reversed for the sole reason that the trial court erroneously held on demurrer that several causes of action were improperly united in appellant's second amended complaint. After a jury was sworn to try the cause, appellant asked and obtained leave of court to add to his first cause of action-the object of which was to restrain a sale of his premises to satisfy a special sidewalk assessment-a paragraph relating to damages occasioned in the year 1896 by changing the surface of the ground for the purposes of such sidewalk on the west side of his property to conform to grade. Thus amended, the complaint stated three properly Vol. 11 S. D.-23 Opinion of the Court-FULLER, J. [11 S. D. united causes of action, the second of which was to recover for further and different injury occasioned by the grading above mentioned, and the third was for damages to the same property, sustained in a similar way during the year 1894. Now, as the demurrer went to the entire complaint, and not merely to one or more of the several causes of action therein stated, a holding that several good causes of action are improperly united imports no inference that any particular one of such causes must be dismissed. but that, in the opinion of the court, they should be "divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned." Comp. Laws, § 4937. Rather than submit to the statutory method of dividing a complaint into separate causes of action, or to appeal directly from the order entered on demurrer, and to which an exception was duly taken, appellant, upon his own motion, thereupon singled out and dismissed his third cause of action, as shown by the following proceedings: Plaintiff asks leave to amend by being permitted to allow his second amended complaint to stand as before without the third cause of action. By the Court: If the request is to be understood as eliminating the third cause of action from this proceeding entirely, which the court understands to be the effect, it will be allowed." In the absence of a counterclaim or showing that a discontinuance would materially prejudice respondent, appellant had a right to dismiss, either before or after issue was joined, one or all of his causes of action; and a denial of such application would constitute an abuse of discretion. Schaetzel v. City of Huron, 6 S. D. 134, 60 N. W. 741. It requires no elucidation to show that appellant was not required to elect upon what causes of action he would stand, but, in legal effect, chose to dismiss his third cause of action, and was granted neither more nor less than that for which application was voluntarily made. So far as it concerns appellant's right to a review of the error complained of, the case stands as though he had, upon his own motion, dismissed the entire action immediately upon taking an exception to the order sustaining respondent's demurrer to his second amended complaint, in which event his right to an appeal or to a review of error, however prejudicial, would be forever lost. 6 Enc. Pl. & Prac. 1003, and cases there collated. In our former decision it was found that the record disclosed no error occurring subsequent to what we now hold to be a self-invited dismissal of the third cause of action, which a reversal would not operate to restore, and by means of which appellant abandoned his exception to the order sustaining a demurrer interposed to the entire complaint. Receding, as we must, from our former decision that upon the point here discussed the case should be reversed and remanded for a new trial, the judgment is in every respect affirmed. MCDONALD V. FULLER, Sheriff, et al. 1. Failure of an execution, issued to a county other than that in which the judgment was rendered, to state that a transcript had been filed in the former county, is a mere irregularity. 2. Under Comp. Laws, $5114, providing that execution" may be issued to the sheriff of the county where the judgment is docketed," an execution issued to a county other than that in which the judgment was rendered is valid, though taken from the clerk's office before the judgment is dock Opinion of the Court-CORSON, P. J. [11 S. D. eted in the former county, docketing occurring before the execution was delivered to the sheriff. 3. An apparent alteration in an execution will be presumed to have been innocently made before issuance of the writ. 4. Judgment in claim and delivery suit on verdict directed for plaintiff, after the execution on which defendant relied had been excluded from evidence, having been reversed on appeal on the ground that the execution was improperly excluded, the appellate court will remand the cause for new trial, and not direct judgment for defendant. HANEY, J., dissenting. (Opinion filed December 21, 1898.) Appeal from circuit court, Butte county. Hon. A. J PLOWMAN, Judge. Action in claim and delivery by Thomas W. McDonald against George S. Fuller, sheriff of Butte county, and another. Judgment for plaintiff. Defendants appeal. Reversed. The facts are stated in the opinion. John R. Wilson, for appellants. McLauglin & McLaughlin, for respondents. CORSON, P. J. This was an action in claim and delivery. A verdict was directed for plaintiff, and from the judgment entered thereon, and order denying a new trial, the defendant appealed. The appellant was sheriff of Butte county, and sought to justify the seizure and detention of the stock of goods in controversy in this action, under and by virtue of certain executions issued to him, as such sheriff, on judgments recovered in Lawrence county, against one Edward McDonald, who, he claimed was the owner of said stock of goods. On the trial the transcripts of the judgments and docketing in two cases were objected to, and excluded by the court, upon grounds not Dec., 1898.] Opinion of the Court-CORSON, P. J. necessary now to be stated, as the main question upon which this decision will be made is fully presented by the record in the third case, of the C. D. Woodward Company against Edward McDonald. An execution issued upon the judgment in that case being offered in evidence, counsel for respondent objected to its reception, on the following grounds: (1) Be cause the execution is defective, in that it does not show that any transcript has been filed in Butte county; (2) because it appears from the execution that it was issued on the 23d day of September 1895, and the filing mark of the clerk shows that the transcript was not filed here until September 24, 1895, and therefore the execution was issued prematurely. Plaintiff also objects to this execution for the reason that there is an 'alteration in it apparent on the face of it, which is not explained." The objection was sustained, and the ruling of the court is assigned as error. The first ground does not require much consideration, for the reason that the failure to insert in the execution the date when the judgment was docketed in Butte county constituted mere irregularity, and was amendable, provided the judgment was in fact docketed in Butte county. Freem. Ex'ns, § 64, et seq. The second ground raises a more important question. It is contended by the respondent that the clerk of Lawrence county had no authority to issue the execution until the judgment was docketed in Butte county, and that it was therefore void. The appellant contends that, as the execution was not delivered to the sheriff until after the judgment was docketed in Butte county, it was in legal effect, issued after the judgment was properly docketed in the latter county. Section 5114, Comp. Laws, provides that, "when the execution is against the prop |