CHAPTER II.

FORMS OF DEMURRERS.

§ 3077. Demurrer to some of several causes of action, and to the whole complaint.

[TITLE.]

Form No. 674.

I. The defendant demurs to the first cause of action stated in the complaint in this cause upon the following grounds: 1. That said first alleged cause of action does not state facts sufficient to constitute a cause of action.

2. That said first alleged cause of action is ambiguous, unintelligible, and uncertain in this [state particularly wherein it is ambiguous, etc.]

II. The defendant also demurs to the third cause of action in said complaint contained, upon the ground that [state any ground of demurrer applicable to the cause of action, or as many grounds as there may be].

III. The defendant also demurs to the whole complaint in this cause upon the grounds following:

1. That several causes of action have been improperly united therein. [State wherein the joinder is improper.]

2. [State any other ground of demurrer applicable to the whole complaint.]

§ 3078. Grounds of demurrer. The defendant may demur to the complaint within the time required in the summons to answer, when it appears upon the face thereof, either:

1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; or,

2. That the plaintiff has not legal capacity to sue; or,

3. That there is another action pending between the same parties for the same cause; or,

4. That there is a defect or misjoinder of parties, plaintiff or defendant; or,

or,

5. That several causes of action have been improperly united;

6. That the complaint does not state facts sufficient to constitute a cause of action; or,

7. That the complaint is ambiguous, unintelligible, or uncertain.1

The demurrer must distinctly specify the grounds upon which any of the objections to the complaint are taken. Unless it do so, it may be disregarded. It may be taken to the whole complaint, or to any of the causes of action stated therein, or the defendant may answer or demur at the same time.2 When any of the grounds of demurrer do not appear upon the face of the complaint, the objection may be taken by answer. If no such 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.4

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§ 3079. Several causes of action. If a complaint containing several causes of action is demurred to, on the ground that the several counts do not state facts sufficient to constitute a cause of action, the demurrer must be overruled, unless all the statements are insufficient. If there are several causes of action in the complaint, and a demurrer is interposed to one or more, but not to each, the defendant should take care to avoid a default as to the causes of action not demurred to. In such case he may stipulate for time to answer such causes of action until the demurrer is disposed of to the other causes of action, or he may answer them at the same time that he files his demurrer. If there is ground of demurrer to the whole complaint, and a demurrer is interposed thereto, as there inay be, notwithstanding there is one good cause of action, that would, of course, save any default being taken.

1 Cal. Code Civ. Pro., § 430.

2 Id., § 431.

3 Id., § 433.

4 Id., § 434. These provisions of the California Code are found in substance in all the codes.

5 Martin v. Mattison, 8 Abb. Pr. 3; Butler v. Wood, 10 How. Pr. 222; Newbery v. Garland, 31 Barb. 121; Jaques v. Morris, 2 E. D. Smith, 639; Cooper v. Clason, 1 Code R. (N. S.) 347; Townsend v. Jemison, 7 How. (U. S.) 706; Clark v. Smith, 4 West Coast Rep. 90; Barbre v. Goodale, 28 Oreg. 465; also, § 3071, ante.

§ 3080. On the ground of want of jurisdiction.

[TITLE.]

Form No. 675.

The defendant demurs to the complaint filed herein, and for cause for demurrer alleges:

I. That the court has no jurisdiction of the person of the defendant [or of the subject-matter of the action-state why].

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§ 3081. Want of jurisdiction demurrer for. The meaning of the clause, "that the court has no jurisdiction of the person," is that the person is not subject to the jurisdiction of the court, and not that the suit has not been regularly commenced. If the suit has not been regularly commenced, the remedy of the defendant is by motion against the irregularity. Jurisdiction is the power to hear and determine the controversy brought before the court. Jurisdiction is the power to hear and determine, or to hear without determining, or to determine without hearing. In the case of Doll v. Feller, 16 Cal. 432, it was held that "a demurrer to the jurisdiction of the court only lies where the want of such jurisdiction appears affirmatively upon the face of the complaint. In a court of limited and special jurisdiction the rule is otherwise."9 A Justice's Court is an inferior court, and its jurisdiction must be shown affirmatively by a party relying upon or claiming any right under its judgments.10 Where an inferior tribunal, as the board of land commissioners, has once acquired jurisdiction of a matter, its subsequent proceedings can not be collaterally questioned for mere error or irregularity." There are two modes of acquiring jurisdiction of the person: 1. By personal service of the summons, and copy of complaint; and, 2. By constructive service, or by what is commonly called publication of summons.12 Where S. and B. admitted "due service" in

6 Nones v. Hope Mut. Life Ins. Co., 8 Barb. 541.

7 C. P. R. R. Co. v. Placer County, 43 Cal. 365. It is a misnomer to classify the objection that a complaint does not state facts sufficient to constitute a cause of action as an objection against the jurisdiction of the court. Toothaker v. City of Boulder, 13 Col.

219.

8 Ex parte Bennett, 44 Cal. 85.

9 See Wilson v. Mayor of New York, 6 Abb. Pr. 6; S. C., 15 How. Pr. 500; Koenig v. Nott, 8 Abb. Pr. 884.

10 Jolle v. Foltz, 34 Cal. 321; Winter v. Fitzpatrick, 35 id. 269.

11 Bernal v. Lynch, 36 Cal. 135.

12 Hahn v. Kelley, 34 Cal. 391; 94 Am. Dec. 742.

an action against them and others, the court thereby acquires jurisdiction of them.13 The court whose jurisdiction is impeached has power to determine the question whether it possesses it or not.14

§ 3082. Several causes of action - statement of grounds. Where there are several causes of action, but of one of them the court has no jurisdiction, the demurrer must be to that one, and in this form, and not to the whole complaint, as for a misjoinder of actions.15 A demurrer on the ground "that the court has no jurisdiction either of the person of the defendants or of the subject of the action," and "that the complaint does not state facts sufficient to constitute a cause of action," is sufficiently explicit under the rule of construction adopted by the courts of this state.16 In New York objection to the jurisdiction may be raised whenever the parties are before the court, either at Special Term, or by motion on the trial, or by motion in arrest after verdict.17

§ 3083. On the ground of want of capacity to sue.

[TITLE.]

Form No. 676.

The defendant demurs to the complaint filed herein, and for cause of demurrer alleges:

That the plaintiff has not legal capacity to sue [state reason why].

§ 3084. Company - membership. The failure to aver membership in a company in the body of the complaint is a ground for demurrer. 18

13 Sharp v. Brunnings, 35 Cal. 528.

14 King v. Poole, 36 Barb. 242. Under the laws of Washington (Laws of 1887-8, p. 24), jurisdiction could be obtained of the person of a defendant by the service upon him of the summons prescribed in the act, and without the service of the complaint in the action, its filing with the clerk of the court being sufficient. Baldwin v. Baer, 10 Wash. St. 414.

15 Cook v. Chase, 3 Duer, 643.

16 Ellissen v. Halleck, 6 Cal. 386; Willis v. Farley, 24 id. 491; Kent v. Snyder, 30 id. 666; and see Cal. Code Civ. Pro., § 434.

17 Burnham v. De Bevorse, 8 How. Pr. 160; see, also, Higgins v. Rockwell, 2 Duer, 653; Blacksmith v. Fellows, 3 Seld. 404; Gould v. Glass, 19 Barb. 186. An objection to the jurisdiction may be made at any time. Durant v. Comegys, 2 Idaho, 810.

18 Tolmie v. Dean, 1 Wash. Ter. 46.

§ 3085. County. A county has legal capacity to sue.19 The statute provides that no person shall sue a county, unless the claim has been first presented to the board of supervisors, and been by them rejected; this fact must appear in the complaint, or it is demurrable.20

§ 3086. Corporation. The omission on the part of a corporation plaintiff to show their incorporation can not be reached by a general demurrer, based upon the ground that the complaint does not state facts sufficient to constitute a cause of action. That the plaintiff has not legal capacity to sue is made a ground for special demurrer, and must, therefore, be specially assigned.21 Where a corporation sues, it must show how it was created; without this there is a fatal omission of one of the material elements of a good cause of action.22

§ 3087. Defect must be apparent. Ground of demurrer for want of capacity to sue must appear from allegation as made, not from want of allegation.23

§ 3088. Foreign state. Demurrer is allowed to a bill brought by the "United States of America," on the ground that a foreign state is not allowed to sue in a court of equity, without putting forward some public officer on whom process may be served, and who can be called upon to give discovery on a cross-bill.24

3089. Guardian of infant. A complaint omitting to allege the appointment of a guardian for an infant plaintiff is impeachable under this subdivision.25

§ 3090. Note held in trust. A plaintiff has no legal capacity to sue in an action on a promissory note, when it appears on

19 Placer County v. Astin, 8 Cal. 305.

20 McCann v. Sierra County, 7 Cal. 123.

21 Bank of Lowville v. Edwards, 11 How. Pr. 216; see Harmon v. Vanderbilt Hotel Co., 79 Hun, 392; Fox v. Erie Preserving Co., 93 N. Y. 54.

22 Johnson v. Kemp, 11 How. Pr. 186; § 373, ante.

23 Phenix Bank of New York v. Donnell, 41 Barb. 571; affirmed, 40 N. Y. 419; Wilhoit v. Cunningham, 87 Cal. 453; Herbst v. Importing Co., 16 Mont. 384; and see Miller v. Luco, 80 Cal. 257; Swing v. Lumber Co., 81 Wis. 517.

24 United States of America v. Wagner, L. R., 3 Eq. 724. 25 Grantman v. Thrall, 44 Barb. 173.