In case the judge of the court in which the action is to be tried is disqualified the action must be transferred to another court for trial;32 but if, when the motion to transfer the action for such cause comes on to be heard, the judge of another Superior Court is holding a session of the Superior Court for such disqualified judge, and at his request, and such judge of another court is qualified to try the case, and is ready and willing, to do so, such motion for the change of the place of trial should be denied.33 Before the passage of the act of the legislature of 1897, amending section 170 of the Code of Civil Procedure in respect to the disqualification of judicial officers, a judge was not disqualified by reason of bias or prejudice from sitting and acting as judge on the trial of a case.34 By that act of 1897 (statutes 1897, page 287), a judge is disqualified by reason of such bias or prejudice and such bias or prejudice can be shown by affidavits. 32. Livermore v. Brundage, 64 Cal.. 299; Krumdick v. Crump, 98 Cal. 119. 33. Upton v. Upton, 94 Cal. 26; Paige v. Carroll, 61 Cal. 216. 34. Mining Co. v. Mining Co., 83 Cal. 617. CHAPTER VIII. OF PLEADINGS IN AN ACTION AND OF THE COMPLAINT THEREIN. Pleadings are defined by Blackstone to be the mutual altercations between the plaintiff and the defendant; which formerly at common law were usually put in by their counsel ore tenus and then minuted down by the chief clerk or prothonotary.1 At common law the first pleading on the part of the plaintiff was the declaration. At common law a nonsuit of the plaintiff in an action was from the default and neglect of the plaintiff, and therefore he was allowed to begin his suit again upon the payment of costs; but a retraxit was an open and voluntary renunciation by the plaintiff of his suit in court, and by this he forever lost his action.2 The first pleadings on the part of the defendant at common law, was a demurrer to the declaration which raised an issue of law, and a plea to the jurisdiction of the court, a plea to the disability of the plaintiff, a plea in abatement, and a plea in bar, or to the merits of the action; these pleas, with the exception of the plea in bar were dilatory pleas." The plaintiff could demur to the plea in bar or file a replication thereto. To this replication, the defendant could file a rejoinder; to this rejoinder, the plaintiff could file a sur-rejoinder, and so on until there were certain and material issues of facr raised by the pleadings. Under the code system, the pleadings are defined to be the formal allegations by the parties, of their respective claims for the judgment of the court, and the pleadings allowed on the part of the plaintiff are: 1. 3 Bl. Com. 294. 3. 3 Bl. Com. 310, 311. I. 2. 3. The complaint. The demurrer to the answer. Demurrer and answer to a cross complaint. And on the part of the defendant: I. The demurrer to the complaint. 2. The answer. 3. The demurrer to answer to the cross complaint.1 I. The title of the action, the name of the court and county in which the action is brought, and the names of the parties to the action. 2. A statement of facts constituting the cause of action, in ordinary and concise language. 3. A demand of the relief which the plaintiff claims. If the recovery of money or damages be demanded, the amount thereof must be stated. The plaintiff may unite several causes of action in the same complaint where they all arise out of I. Contracts express or implied; 2. Claims to recover specific real property, with or without damages for the withholding thereof, or for waste committed thereon, and the rents and profits of the same; 3. Claims against a trustee by virtue of a contract, or by operation of law. 4. Claims to recover specific personal property, with or without damages for the withholding thereof. 5. Injuries to character. 6. Injuries to person. 7. Injuries to property. The causes of action so united must all belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated; but an action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to character or to the person. 5 Each cause of action stated in a complaint, when more than one cause of action is stated therein, should be complete in 4. Code of Civil Procedure, Secs. 420, 427, 442. 5. Code of Civil Procedure, Sec. 427. itself, without reference to another cause of action stated in the same complaint. This rule was not approved by Justice McFarland in a dissenting opinion in that case. The complaint should show a cause of action existing at the commencement of the action. An allegation that the plaintiff was the owner of property at some time previous to the commencement of the action is not an allegation of the ultimate fact that he was such owner at the time of the commencement of the action.8 A printed signature of the attorney of the plaintiff to a complaint is a sufficient signature thereto.9 Every pleading in a court of record must be subscribed by the party or his attorney.10 In courts of justice of the peace, pleadings need not be so subscribed. Montgomery v. Superior Court, 68 Cal. 410. Whatever is an essential element to a cause of action must be presented by a direct averment and cannot be left to an inference to be drawn from the construction of a document attached to the complaint.11 Recitals in an instrument set out in full in a pleading are not an averment of the facts which in such instruments are recited.12 There is no difference between setting forth such instrument in the body of the pleading and in annexing it as an exhibit, and making it a part of the pleading by a proper reference. In each case the copy is a part of the pleading.13 Ultimate facts only should be averred in pleadings.14 Under the code system of pleading the common law forms of actions are cast aside, and every action is under that system a special action on the case.15 In pleadings, statements of mere conclusions of law are 6. Pennie v. Milreth, 81 Cal. 127. 7. Affierbach v. McGovern, 79 Cal. 269. 14. Miles v. McDermott, 31 Cal. 273. 15. Jones v. Steamship Curtis, 17 Cal. 499; Rogers v. Duhart, 97 Cal. 504. insufficient; the facts from which the conclusions of law. are drawn must be stated.16 The allegation that one is the "owner" of property is an allegation of an ultimate fact, unless the context shows that it was intended as a mere conclusion from other facts state. 1.17 The following allegations have been held to be allegat ons of conclusions of law, namely: allegations of "indebtedness" or that a certain sum is due.18 That acts were "wrongful" or "unlawful." That an act was "wrongfully" or "unlawfully" done; or was "fraudulent."21 The word "duly" is a statement of a conclusion of law and should not be used in a pleading except when such use is allowed by statute. Facts should be alleged showing that an act was unlawful, or wrongful, or fraudulent, or showing indebtedness or that a certain sum is due. 22 Statements of conclusions of law in a pleading are useless." Our Supreme Court has held, however, that the ordinary counts in indebitatus assumpsit in common law actions, state facts sufficient to constitute a cause of action under the code system of pleading.23 No satisfactory definition has ever been given of an ultimate fact, such as is required to be stated under the Code system of pleading, and it is a safe rule that pleadings should observe the form of expression as contained in precedents approved by the decisions of the highest courts of the state. It is stated by Stephens in his work on pleadings "it may be observed, that though it is in general unnecessary to allege matters of law, yet there is sometimes occasion to make mention of them for the convenience or intelligibility of the statement of fact;"24 and there can be no objection to such statement of law in a pleading when made for such a purpose. 16. Wilkins v. Stidger, 22 Cal. 231; Ohm v. San Francisco, 92 Cal. 437. 17. Turner v. White, 73 Cal. 301. 18. Doyle v. Insurance Co., 44 Cal. 264; Frish v. Caler, 21 Cal. 71. 19. Payne and Dewey v. Treadwell, 16 Cal. 244. 20. Going v. Dinwiddie, 86 Cal. 639. 21. Triscony v. Orr, 49 Cal. 617. |
