affidavit to a plea is not, in Missouri, a ground for demurrer.68 The objection to the want of verification of the complaint, where verification is required by statute, must be taken either before answer or with the answer.69 It has been held that it should be taken by motion when the respondents appear.70

§ 3073. Objections to prayer for relief. Objections to the prayer of a complaint can not be taken by demurrer. If the specific relief asked can not be granted, such relief as the case stated in the bill authorizes may be had under the clause in the prayer for general relief, and even in the absence of such clause when an answer is filed. The facts in the complaint, and not the prayer, settle the relief to be granted." Nor will demurrer lie to the demand for more relief than the plaintiff is entitled to.72 If the complaint shows that the plaintiff has a cause of action, and that he is entitled to some relief, the question as to what kind, or how much relief should be granted to him, can not be made on demurrer.73 But if the complaint does not state facts sufficient to enable the plaintiff to recover any part of the relief demanded, it is demurrable, though he would from the facts be entitled to other relief.74 A demurrer to a complaint, on the ground that it seeks a remedy at law,

68 Parker v. Simpson, 1 Mo. 539.

69 Greenfield v. Steamer Gunnell, 6 Cal. 67.

70 Woodworth v. Edwards, 3 Woodb. & M. 120.

71 Rollins v. Forbes, 10 Cal. 299; People v. Morrill, 26 id. 336; cited in Althof v. Conheim, 38 id. 234; Stewart v. Hutchinson, 29 How. Pr. 181; Mackey v. Auer, 8 Hun, 180; Walker v. Spencer, 13 Jones & S. 71; Garner v. Harmony Mills, 6 Abb. N. C. 212; Garner v. Thorn, 56 How. Pr. 452. The entire omission of any prayer would not subject the complaint or petition to demurrer. Fox V. Graves, 46 Neb. 812.

72 Rollins v. Forbes, 10 Cal. 299; Andrews v. Shaffer, 12 How. Pr. 443; Beale v. Hayes, 5 Sandf. 640; Emery v. Pease, 20 N. Y. 62; Moran v. Anderson, 1 Abb. Pr. 288; Moses v. Walker, 2 Hilt. 536; Stuyvesant v. Mayor of New York, 11 Paige Ch. 415; Woodgate v. Fleet, 9 Abb. Pr. 222; Hecker v. DeGroot, 15 How. Pr. 314; Bishop v. Edmiston, 16 Abb. Pr. 466; Price v. Brown, 10 Abb. N. C. 67; Howard v. Seattle Nat. Bank, 10 Wash. St. 280.

73 Poett v. Stearns, 28 Cal. 226. If the complaint state facts which entitle the plaintiff to relief, whether legal or equitable, it is not demurrable on the ground that it does not state facts sufficient to constitute a cause of action. Marriott v. Clise, 12 Col. 561. 74 Walton v. Walton, 32 Barb. 203; S. C., 20 How. Pr. 347.

and also seeks for equitable relief is bad.75 A demurrer to a bill in equity alleging that the relief can be had at law, will not lie where the bill charges fraud, and prays relief against a judgment at law, and a sale under it.76

§ 3074. General demurrer. In Pennsylvania it has been held that a general demurrer is only for defects of substance; a special demurrer for defects of form, which must be specially assigned." A general demurrer, assigning reasons why the plaintiff should not recover, must be considered and treated as a special demurrer.78 Section 431, California Code of Civil Procedure, provides that the demurrer must distinctly specify the grounds upon which any of the objections to the complaint are taken, and unless it does so it may be disregarded; but this provision, as we shall hereafter sec, does not in fact change the force and effect of a general demurrer, or the mode of framing it, since, under section 434, it is provided that a failure to demur to the jurisdiction, or upon the ground that the complaint does not state facts sufficient to constitute a cause of action, does not waive either objection. This must be so, independently of this provision, since, if the court has not jurisdiction, it can not render a valid judgment, nor could a judgment be sustained upon the record if it did not disclose facts to sustain the judgment. On demurrer, the court should not pay any attention to forms, if it can find in the complaint any allegations which, under any view of them, may give the plaintiff a right to recover.79 Or, if the complaint contains the elements of a cause of action, however inartificially it may be stated; and if, on analyzing the facts disclosed, the whole or any part of them can be resolved into a cause of action, the demurrer should be overruled.80 If the declaration does not

75 Gates v. Kieff, 7 Cal. 125; Rollins v. Forbes, 10 id. 300. 78 Shelton v. Tiffin, 6 How. (U. S.) 163.

77 Commonwealth v. Cross Cut R. R. Co., 53 Penn. St. 62. 78 Tyler v. Hand, 7 How. (U. S.) 573.

79 Wilder v. McCormick, 2 Blatchf. C. C. 31; Butterworth v. O'Brien, 39 Barb. 192; S. C., 24 How. Pr. 438. The same distinction between insufficient facts and an insufficient statement of facts, which prevails when it is considered whether the complaint supports the judgment, should prevail upon general demurrer. Amestoy v. Electric Rapid Transit Co., 95 Cal. 311.

80 People v. Mayor of New York, 28 Barb. 240; S. C., 8 Abb. Pr. 7; Buzzard v. Knapp, 12 How. Pr. 504; Amestoy v. Electric Rapid Transit Co., 95 Cal. 311.

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set forth a proper case, and in a correct form, the defendant may avail himself of these defects on demurrer; but the want of proper averments in the declaration can not be made the ground of a nonsuit.81 For defects in mere matters of form in a pleading, the adverse party should interpose a special demurrer. A general demurrer will not in general reach them.82 But these questions are regulated by the decisions of the courts in the several states and the statutes in force. A general demurrer to a plea of fraud in obtaining the judgment in suit is insufficient where the objection intended to be raised is that the plea does not state the particulars of the fraud relied upon; this being matter of form.83 In California, it is held that an averment in a complaint that the defendant unlawfully took personal property, is a mere averment of law, and an averment that he fraudulently took it, without stating the facts which constitute the fraud, is not a statement of an issuable fact.84

§ 3075. Special demurrers. The phrase " special demurrer ' doubtless means a demurrer which specifies the grounds upon which objections are taken.85 At common law and in the old equity practice a special demurrer should point out specifically by paragraph, page, or folio, or other mode of reference, the parts of the bill to which it is intended to apply.86 It must specify the grounds upon which any of the objections to the complaint are taken;87 and if it omit such specifications it may be disregarded.88 This must be done in all cases, except: 1. When objection is raised to the jurisdiction of the court; and, 2. When the ground is that the complaint does not state facts

81 Bas v. Steel, Pet. C. C. 406.

82 Childress v. Emory, 8 Wheat. 642; Christmas v. Russell, 5 Wall. 290; compare Lockington v. Smith, Pet. C. C. 466; Tehama County v. Bryan, 68 Cal. 57; Pedrovena v. Hotchkiss, 95 id. 636; Schmidt v. Railway Co., 90 id. 37; Kimball v. Lyon, 19 Col. 266.

83 Christmas v. Russell, 5 Wall. 290.

84 Triscony v. Orr, 49 Cal. 612; Cosgrove v. Fisk, 90 id. 75; and see Selz v. Tucker, 10 Utah, 132.

85 Drais v. Hogan, 50 Cal. 127.

86 Robinson v. Thompson, 2 Ves. & B. 118: Weatherhead v. Blackburn, id. 121; Dovensher v. Newenham, 2 Sch. & Lef. 199; Story's Eq. Pl., § 457; Atwill v. Ferrett, 2 Blatchf. 39: Jarvis v. Palmer, 11 Paige Ch. 650; Kuypers v. Reformed Dutch Church, 6 id. 570. 87 Stat. of Oreg., § 67; Harper v. Chamberlain, 11 Abb. Pr. 234. 88 Cal. Code Civ. Pro., § 431; N. Y. Code, § 490.

sufficient to constitute a cause of action.89 A special demurrer is distinguished from a general demurrer by pointing out specially the causes for it.90 A demurrer to one of two counts may be sustained, and judgment be entered on the other against defendant.91 But a demurrer for a misjoinder of counts must be to the whole declaration,92 and a cause of demurrer must be specially assigned.93

There are seven

§ 3076. Causes or grounds for demurrer. causes for which a demurrer may be interposed under section 430 of the California Code of Civil Procedure. Unless a ground of demurrer be included under one or more of such causes, it can not be sustained.94 A defect which will defeat the plaintiff's present right to recover, in whole or in part, is a good ground of demurrer.95 The demurrer is good if it assigns the grounds of objection substantially as they are defined in the

89 Kent v. Snyder, 30 Cal. 666; see Anibal v. Hunter, 6 How. Pr. 255; Durkee v. Saratoga R. R. Co., 4 id. 226; Hinds v. Tweddle, 7 id. 278; Haire v. Baker, 5 N. Y. 357; Johnson v. Wetmore, 12 Barb. 433; Skinner v. Stuart, 13 Abb. Pr. 457; Viburt v. Frost, 3 id. 120; Hobart v. Frost, 5 Duer, 672; Nash v. Smith, 6 Conn. 421.

90 Steamboat Reveille v. Case, 9 Mo. 498; Jackson v. Rundlet, 1 Woodb. & M. 381. If a complaint fails to state a fact essential to the cause of action, the defendant may take advantage of the defect by a general demurrer. Dixon v. Cardozo, 106 Cal. 506; and see Wilkeson Coal Co. v. Driver, 9 Wash. St. 177. If, however, the complaint avers all the essential facts, but states them defectively or improperly, the defect can only be reached by a special demurrer, particularly designating the specific point at which it is aimed. Harnish v. Bramer, 71 Cal. 155; Jacobs v. Mercantile Co., 17 Mont. 61. The general rule is that a demurrer which does not distinctly specify the grounds of objection to the complaint will be disregarded. Henderson v. Johns, 13 Col. 280; Dodge v. Colby, 108 N. Y. 445. As to when it lies, and its effect, see Whetcroft v. Dunlop, 1 Cranch C. C. 5; Vowell v. Lyles, id. 428; McCue v. Corporation of Wash., 3 id. 639; Malone v. Stillwell, 15 Abb. Pr. 421; Nellis v. De Forest, 16 Barb. 65; Chandler v. Byrd, Hempst. 222; Oage v. Jeffries, id. 409.

91 Barber v. Cazalis, 30 Cal. 92.

921 Chit. Pl. 180; Ferriss v. N. A. Fire Ins. Co., 1 Hill, 71.

93 Owsley v. Montgomery & W. P. R. R. Co., 37 Ala. 560.

94 Hentsch v. Porter, 10 Cal. 555; Harper v. Chamberlain, 11 Abb. Pr. 232.

95 Hentsch v. Porter, 10 Cal. 555.

statute.96 A demurrer will lie only when one of the several grounds of demurrer is apparent on the face of the complaint,97 and the defendant is confined to the objections specified.98

96 Lagow v. Neilson, 10 Ind. 183; De Witt v. Swift, 3 How. Pr. 280; but see Cal. Code Civ. Pro., § 431; and Ellissen v. Halleck, 6 Cal. 386; Henderson v. Johns, 13 Col. 280.

97 Simpson v. Loft, 8 How. Pr. 234; Getty v. Hudson River R. R. Co., id. 177; Wilson v. Mayor of New York, 6 Abb. Pr. 6; S. C., 4 E. D. Smith, 675; S. C., 15 How. Pr. 550; Coe v. Beckwith, 31 Barb. 339; Mayberry v. Kelly, 1 Kan. 116; Union Mut. Ins. Co. v. Osgood, 1 Duer, 707; Aurora v. Cobb, 21 Ind. 492; Kenworthy v. Williams, 5 id. 375; Davy v. Betts, 23 How. Pr. 396; Dillaye v. Wilson, 43 Barb. 261; Bell v. Mayor of Vicksburg, 23 How. (U. S.) 443; Amory v. McGregor, 12 Johns. 287; Powers v. Ames, 9 Minn. 178.

98 Loomis v. Tifft, 16 Barb. 541; Lopez v. Central Arizona Mining Co., 1 West Coast Rep. 41.