has stated facts sufficient to constitute a cause of action, is thus disposed of without the introduction of testimony, or the form of a trial.

Whether a complaint be demurrable is always an important inquiry to determine, which requires a careful and analytical examination. The statutes of the several states prescribe certain special grounds for demurrer, differing in some respects, but the general ground, that the complaint does not state facts sufficient to constitute a cause of action, can be interposed in all courts of common-law jurisdiction. The inquiries to be made by defendant when served with the complaint, if he wishes to demur to it, are: 1. "Has the court jurisdiction of the person of the defendant?" If the answer be in the affirmative, then, 2. "Has the court jurisdiction of the subject of the action?" For if the person or property named in the complaint is beyond the jurisdiction of the court, for any reason which appears upon the face of the complaint, then the action must fall. The second cause of demurrer under our practice is as to the capacity of plaintiff to sue; for, should it appear, from the face of the complaint, that the plaintiff has no capacity to sue, the action likewise falls. The question of capacity to sue often arises where a married woman is plaintiff, or one of the plaintiffs, or when a minor sues, or when a person sues in a representative or official capacity. But, third, the court may have jurisdiction of the person or property of the defendant, and the plaintiff may have the legal capacity to sue, yet there may be another action perding between the same parties for the same cause; or, fourth, there may be a defect or a misjoinder of parties plaintiff or defendant. The inquiry whether there be another action pending, etc., can rarely be raised by demurrer, for, in most instances, the facts disclosing this will not appear on the face of the complaint, and hence that issue must be presented by the answer. But whether there is a misjoinder or defect of parties, plaintiff or defendant, is a question requiring a careful consideration. This may generally be settled by the inquiries: "Has the plaintiff or defendant an interest in the event of the suit?" "Will his rights be adjudicated upon in the action?" or, "Will the rights of another person, not a party to the action, be affected in the disposition of the cause?" The interest or right thus to be affected must be an actual, existing interest, an interest which any judgment of the court would nearly or remotely affect. A mere possible interest is not in general such as will

require a party to be joined in the action. When, however, the title to property is sought to be determined by the judgment or decree of the court, then persons possessing very slight or remote interests should be made parties, as in actions of partition, the foreclosure of mortgages, etc.

The next objection, and the fifth ground of demurrer under the statute, is, "that several causes of action have been improperly united." For instance, an action for damages for personal injury can not be united with an action on account; nor can an action to quiet title, or in ejectment, or any other action affecting real property, be united with a simple assumpsit. In general, under the liberal provisions of our statute, different causes of action may be united when they belong to the same class or species of injuries or wrongs, or when they arise out of the same transaction. But, admitting that the action is brought in the right court, that the parties plaintiff have the right to sue, and that it is brought by the proper parties, and that no other action is pending between these parties, still, the sixth ground of demurrer under the statute, and the one most often interposed, is, "that the complaint does not state facts sufficient to constitute a cause of action." Thus, where the complaint shows upon its face, in an action on account, that it accrued more than two years before the commencement of the suit; or, in an action of ejectment, a seisin and ouster are alleged to have occurred more than five years before the commencement of the action; in each case the complaint would fail to state a cause of action because of the bar of the Statute of Limitations. The instances where a plaintiff would fail to state facts sufficient to constitute a cause of action are so numerous that examples seem unnecessary. The following inquiries, however, may be a guide to the practitioner on the subject: 1. Does the complaint show that the plaintiff has suffered an injury? 2. Is it an injury which the law recognizes as a wrong, and for which it provides a remedy? 3. Is the defendant liable for the alleged wrong done? 4. If the defendant is liable, to what extent is he liable, and what will be the legal remedy for such injury? These questions will, in general, test the validity of the pleading. Any person may know that an answer must be made to a complaint, but it frequently requires the most careful and critical thought to tell when it may be successfully demurred to. The answer puts in issue the facts, while the demurrer puts in issue the law. The one

denies the allegations of the complaint; the other admits but avoids them by affirming that no wrong was done the plaintiff by the defendant. By wrong is meant no wrong for which the law affords a remedy. The seventh and last ground of demurrer prescribed by our statute goes more to the manner than the matter of the complaint, namely, that the complaint is ambiguous, unintelligible, or uncertain. For instance, a complainant might have a perfect cause of action, and might also state facts in his pleading "sufficient to constitute a cause of action," but he may so intermingle them with extraneous matter that the complaint would be meaningless; in other words. " the allegations of the complaint should be so clear and pointed that defendant may know what he is charged with, and what he must admit or deny." A defendant, under our practice, is not obliged to look through pages of meaningless sentences to find out the idea of the pleader.

§ 3069. Mode of taking objection. By the former chancery practice, the proper mode of taking advantage of any ground of defense apparent from the bill itself, either from its contents or from defect in its frame, or in the case made by it, was by demurrer. The difference in the modern practice is that objection can not now be taken by demurrer to the frame or form of the bill; the remedy is by motion to make definite." Objections by demurrer may be taken within the time prescribed by the statute for answering the complaint, that is to say: 1. If service of summons is had in the county where the action is brought within ten days after service; 2. If defendant is served out of the county in which action is brought, but in the district, twenty days; 3. If served anywhere else in the state, forty days.8 If service is had by publication, the defendant has forty days to answer after the period for publication expires. The demurrer shall be filed with the clerk, and a copy thereof served on the adverse party or his attorney.10 Where a demurrer to the complaint is put in and overruled, and the defendant then answers, the answer is a waiver of the 61 Mitf. Eq. Pl. 107: 1 Barb. Ch. Pr. 105.

7 Howell v. Fraser, 1 Code R. (N. S.) 270.

8 See Cal. Code Civ. Pro., § 407. And requirements as to time differ in the several states. The statements of the text are given mainly for purposes of illustration.

9 See Cal. Code Civ. Pro., § 413.

10 Id., § 455.

demurrer. The omission of the defendant to join in a demurrer to a plea is a waiver of that plea.12 If demurrers are suffered to rest for three years, the court may then overrule them in its discretion, for want of prosecution.13

The

A statement of facts in a demurrer is not admissible. only office of a demurrer is to raise issues of law upon the facts stated in the pleading demurred to.1 If it requires the slightest statement of facts to make the defect in the complaint apparent, demurrer will not lie.15 The test of a demurrer is: Does it require any facts to sustain it? 16 If no objection be taken, either by demurrer or answer, the defendant must be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.17 A demurrer abandoned after service of an amended pleading is no longer a part of the record, and will be struck out of the appeal-book on motion.18 In a case brought upon a writ of error, which presented the appearance of a demurrer upon the record which had not been disposed of, where there was a verdict upon a plea of the general issue, and a judgment rendered thereon, the Supreme Court presumed that the demurrer had been either withdrawn or overruled.19 Notwithstanding a defendant in chancery demurs, and the demurrer is overruled, he may afterwards insist upon the same thing by his answer.20 And under the civil law, the party who demurred is not prevented from contesting the facts confessed in the demurrer, and compelling the opposite party to prove them.21 This is the modern practice.

11 De Boom v. Priestly, 1 Cal. 206; Brown v. Saratoga R. R. Co., 18 N. Y. 495; Barada v. Inhabitants of Carondelet, 8 Mo. 644; Hammersmith v. Avery, 1 West Coast Rep. 662.

12 Morsell v. Hall, 13 How. 212.

13 Anderson v. Fisk, 36 Cal. 625.

14 Brennan v. Ford, 46 Cal. 7; Brooks v. Gibbons, 1 Paige Ch. 374; § 3068, ante.

15 Davy v. Betts, 23 How. Pr. 306; Dillaye v. Wilson, 43 Barb. 261. 16 Struver v. Ocean Ins. Co., 16 How. Pr. 422.

17 Cal. Code Civ. Pro., § 434. As to waiver of objection to the complaint on special grounds by the omission to demur, see Malone v. Stillwell, 15 Abb. Pr. 421. The objection that the complaint does not state facts sufficient to constitute a cause of action is never waived. Parker v. Bond, 5 Mont. 1.

18 Brown v. Saratoga R. R. Co., 18 N. Y. 495.

19 Townsend v. Jemison, 7 How. (U. S.) 706.

20 See Crawford v. The "William Penn," 3 Wash. C. C. 484.

21 Id.

§ 3070. What a demurrer admits. A demurrer admits the matter of fact, since it refers the law arising upon the fact to the judgment of the court; and, therefore, the fact is taken to be true on such demurrer, or otherwise the court has no foundation on which to make any judgment.22 But only such facts as are issuable and well pleaded are admitted.23 This case, however, involved only the former, the question being whether the demurrer admitted a statement in the complaint which was a mere conclusion of law. It was undoubtedly the rule at common law that a demurrer admitted only facts well or formally pleaded, but by statute a general demurrer confesses all matters pleaded, though informally.24 But a special demurrer admits only facts well pleaded.25 Irrelevant facts are not admitted.26 Where the pleading demurred to contains two contradictory averments, one of which the law adjudges to be a fiction, the demurrer only admits the averment which the law adjudges to be true.27 It admits the allegations of the bill, for the purposes of a motion on the bill.28 Where the court intimates that, conceding the facts to be true, yet the plaintiff could not recover, and the defendant admits the facts could be proved, this is deciding the case as on demurrer, or as on motion for nonsuit.29 But an admission of facts by a demurrer in one cause is not evidence of those facts in another cause, although between the same parties.30 So, a demurrer does not admit the truth of any new facts not appearing in the original pleading.31 And it never admits the law arising on those facts.32

22 Tomlin's Law Dict.

23 Branham v. Mayor, etc., of San Jose, 24 Cal. 602.

24 See Stephen on Pl. 159, 160.

25 Id.; People v. Goddard, 8 Col. 432; Supply Co. v. Elliott, 10 id. 327; Adams v. Coach, 1 Okl. 17.

26 Hall v. Bartlett, 9 Barb. 297.

27 Freeman v. Frank, 10 Abb. Pr. 370; see, generally, Commonwealth, etc., v. Commissioners, 37 Penn. St. 277; Bennion v. Davidson, 1 Horn & Hurl. 48; Freeman v. Frank, 10 Abb. Pr. 370; Cutler v. Wright, 22 N. Y. 472; Greathouse v. Dunlap, 3 McLean C. C. 303; Commercial Bank of Manchester v. Buckner, 20 How. (U. S.) 108; Van Doren v. Tjader, 1 Nev. 380; 90 Am. Dec. 498; Griffing v. Gibb, 2 Black, 519; Foot v. Linck, 5 McLean, 616.

28 Bayerque v. Cohen, 1 McAll. 113.

29 Snodgrass v. Ricketts, 13 Cal. 359.

30 Auld v. Hepburn, 1 Cranch C. C. 122, 166.

31 Van Doren v. Tjader, 1 Nev. 380; 90 Am. Dec. 498.

32 United States v. Arnold, 1 Gall. 348; Hobson v. McArthur, 3 McLean, 241; Griggs v. St. Paul, 9 Minn. 246. A demurrer admits