§ 3143. Liens. An objection to a lien for want of dates may be made on demurrer or on a motion to strike off, but after pleading to the scire facias, it must be considered as waived.168

170

3144. Performance. Where complaint states a condition precedent, but fails to aver performance, defendant may demur. 169 So in case of a promissory note.1 A demurrer for the cause that complaint does not state facts sufficient to constitute a cause of action may be disregarded, if defendant choose to answer instead of standing on the demurrer.171

§ 3145. Presentation of claim. Where, in an action of foreclosure, the complaint fails to state the presentation to, and rejection by the administrator, of the claim against the estate, defendant may demur on the ground of insufficient facts.172

§ 3146. Quo warranto. In quo warranto for an alleged usurpation of the office of pilot for the port of San Francisco, the complaint avers that defendants hold, use, exercise, usurp, and enjoy the office without a license, and also certain allegations as to the right of relator to the office; it was held that these allegations as to the relator's right can not be reached by general demurrer, the complaint being good as against the defendants; that they are not interested in the question as to the right of relator, but only in the determination of their own right to the office.173

168 Howell v. The City of Philadelphia, 38 Penn. St. 471.

169 Happe v. Stout, 2 Cal. 460. A complaint which does not allege performance of one of the essential conditions imposed upon the plaintiffs by the terms of the contract, fails to state a cause of action. Jones v. Perot, 19 Col. 141.

170 Rogers v. Cody, 8 Cal. 324.

171 Levey v. Fargo, 1 Nev. 415; but see Cal. Code Civ. Pro., § 431. 172 Ellissen v. Halleck, 6 Cal. 386; Falkner v. Folsom, id. 412; Hentsch v. Porter, 10 id. 558. These cases are overruled by Fallon v. Butler, 21 id. 24; 81 Am. Dec. 140; and the correctness of the latter decision is doubted by the case of Ellis v. Polhemus, 27 id. 354. The case of Ellissen v. Halleck, 6 id. 393, is either discussed or referred to in the following cases: Falkner v. Folsom's Ex'rs. 6 id. 412; Gates v. Kieff, 7 id. 124; Williamson v. Blattan, 9 id. 50%; Willis v. Farley, 24 id. 498. As to when a presentation of the claim secured by mortgage is necessary to maintain an action of foreclosure against the executor or administrator, see vol. 1, § 438 et seq.

173 Flynn v. Abbott, 16 Cal. 358.

§ 3147. Res adjudicata. Demurrer will not lie to a bill on the ground of res adjudicata, unless it avers that everything in controversy, as the foundation of the suit, was in controversy in the former suit.174 The judgment of a court of competent jurisdiction upon a material matter put directly in issue by the pleading is res adjudicata as to that issue, and the parties are estopped by the judgment from litigating it again.175 A general demurrer does not raise the question whether a judgment pleaded as an estoppel does estop the defendants.176

§ 3148. Securities. The objection that securities sued on are not promissory notes must be made on demurrer. 177

§ 3149. Services of physician. In a suit by a physician against a county on a contract for his services for one year as examining physician of the hospital, the objection that he is not a graduate of a legally constituted medical institute, if good at all, can not be taken by demurrer, unless the demurrer distinctly presents the objection.178

3150. Specific relief. To entitle the plaintiff to subject the assets of an absent debtor to the payment of his claim, he must show that he is without a remedy at law, and if the bill discloses such remedy at law it will be dismissed upon demurrer. 179

3151. Stamp on note. A demurrer will not lie to a complaint on a promissory note which fails to aver or show that the note was duly stamped.180

3152. Statement of grounds. The demurrer is sufficient without a specification of the reason why the facts stated are not sufficient.181 It is sufficient under this subdivision to state that the complaint does not state facts sufficient to constitute a cause of action.182

174 Moss v. Anglo-Egyptian Navigation Co., L. R., 1 Ch. 108; Smith v. Halifax Banking Co., 1 N. B. Eq. 17.

175 Jackson v. Lodge, 36 Cal. 28.

176 Spanagel v. Reay, 47 Cal. 608.

177 Powell v. Ross, 4 Cal. 197.

178 McDaniel v. Yuba County, 14 Cal. 444.

179 Lupton v. Lupton, 3 Cal. 120.

180 Hallock v. Jaudin, 34 Cal. 167.

181 Kent v. Snyder, 30 Cal. 666.

182 Haire v. Baker, 5 N. Y. 357; Paine v. Smith, 2 Duer, 298; Johnson v. Wetmore, 12 Barb. 433; White v. Brown, 14 How. Pr.

183

§ 3153. Statute of Frauds. The Statute of Frauds may be taken advantage of on demurrer to a bill which on its face states a case covered by the statute.1 But where the contract declared upon is void if not in writing, the court will assume, for the purposes of the demurrer, that it is in writing, though not so alleged.184

If it appear on the face of

If

§ 3154. Statute of Limitations. the complaint that the demand is barred by the Statute of Limitations, demurrer will be sustained. But the bar of the statute must clearly appear on the face of the complaint.185 the complaint fails to show whether the contract was verbal or in writing, it will be presumed to be in writing for the purposes of the demurrer.186 It should be distinctly stated in the demurrer.187 It is a personal privilege which must be set up or be deemed waived.188 Under the California system the rule is the same in law and equity; and if it appear upon the face of the complaint that the action is barred, and no facts are alleged taking the demand from the operation of the statute, the complaint is defective, and demurrer lies.189 If the demand be in truth barred, but the fact does not appear upon the face of the complaint, the defense must be made by answer. Where a bill in equity states a case to which the Act of Limitations applies, without bringing it within some of the savings, the defendant may take advantage of the bar by demurrer.190 Where the stat

282; to the contrary; Purdy v. Carpenter, 6 id. 361, citing Van Santv. Pl. 421; Hinds v. Tweddle, 7 How. Pr. 278.

183 Randall v. Howard, 2 Black, 585; Manning v. Pippen, 86 Ala. 357; Dicken v. McKinley, 163 Ill. 318.

184 Miles v. Thorne, 38 Cal. 337; 99 Am. Dec. 384.

185 Smith v. Hall, 19 Cal. 85; Smith v. Richmond, id. 476; Ord v. De La Guerra, 18 id. 67; Kraner v. Halsey, 82 id. 209; Meyer v. Saul, 82 Md. 459; Fulton v. Northern Illinois College, 158 Ill. 333; see Castro v. Geil, 110 Cal. 292.. The defense of laches appearing upon the face of a bill in equity, which fails to set forth facts excusing the delay, may be set up by demurrer, either general or special. Kerfoot v. Billings, 160 Ill. 563; see, on this point, Sands v. St. John, 36 Barb. 628; S. C., 23 How. Pr. 140.

186 Miles v. Thorne, 38 Cal. 335; 99 Am. Dec. 384.

187 Brown v. Martin, 25 Cal. 89; Farwell v. Jackson, 28 id. 106. 188 Grattan v. Wiggins, 23 Cal. 16.

189 Smith v. Richmond, 19 Cal. 476; Maxwell v. Kennedy, 8 How. (U. S.) 210.

190 Wisner v. Barnet, 4 Wash. C. C. 631; compare Dorsey Machine Co. v. McCaffrey, 139 Ind. 545; 47 Am. St. Rep. 290.

ute creates an absolute bar by mere lapse of time, without exception, the defense may be made by demurrer, if the necessary facts appear in the complaint.191 But the demurrer should be resorted to only where it clearly appears that the plaintiff's case has been fully stated, and that being so stated no recovery can be had.192 By the practice in New York, it appears that the defense of the Statute of Limitations can only be taken by answer.193 An allegation in a demurrer "that it appears by the complaint that the cause of action is barred by the Statute of Limitations," is sufficient in form to raise the question of law as to whether the alleged cause of action is barred by the statute.194

§ 3155. Statutory penalty. In an action to recover damages by the owner of a licensed ferry against a party alleged to have run a ferry within the limits prohibited by law it was held that the complaint should have alleged that defendant ran his ferry for a fee or reward, or the promise or expectation of it, or that he ran for other than his own personal use, or that of his family; and the omission of those allegations was fatal.195

§ 3156. Undertaking on attachment. In an action on an undertaking, executed to release property from attachment, the complaint should allege that the property attached was released upon the delivery of the undertaking. 196 A failure to do so is fatal, and the defect may be taken advantage of by demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action.197

§ 3157. Undertakings- penal bonds. In an action by the postmaster-general against a deputy postmaster and his sureties, on the bond executed by them, the sureties pleaded that plaintiff did not, as he was bound by law to do, call upon his deputies to settle his accounts, or cause suits to be brought against him for not so doing; nor did he give notice to the sureties of the defaults; but fraudulently and in violation of his duty to the United States and to the sureties, neglected to bring such ac

191 State v. Bird, 22 Mo. 470.

192 McNair v. Lott, 25 Mo. 182.

193 New York Code, ed. 1877, § 413; Sands v. St. John, 36 Barb. 628; S. C., 23 How. Pr. 140.

194 Brennan v. Lord, 46 Cal...

195 Hanson v. Webb, 3 Cal. 237.

196 Williamson v. Blattan, 9 Cal. 500.

197 Id.; see Selz v. Tucker, 10 Utah, 132. Vol. II-67

tions, and to give notice; it was held that the demurrer having admitted the fraud stated in the plea, the plaintiff could not recover. 198

3158. What it admits. Demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action, admits the validity of the statute authorizing plaintiff to sue. 199

§ 3159. Written instrument. An objection to the pleading of a written instrument, by stating its legal effect, instead of setting forth its contents, can be taken only by demurrer.200

3159a. Foreclosure of mechanic's lien — conclusion of law.

1

An objection to the complaint in an action to foreclose a lien for materials furnished a contractor, on the ground that it states merely a conclusion of law as to the amount due and owing from the owner to the contractors, and that it contains no specific averment as to what was the contract price between them or that there was any express agreement to pay anything, or what was the reasonable value of the work to be done, can only be raised by demurrer, and can not be urged for the first time on appeal.201

3159b. Trespass unvailing demurrer.

Failure on the

part of the owner of land upon which alleged trespass was committed, to comply with certain statutory requirements in connection with his land, conceding it to be a defense to an action for the trespass, can not be taken advantage of by demurrer to a complaint in which no such fact is alleged.202

§ 3159c. Action commenced in wrong county. That an action was commenced in the wrong county is not a ground of demurrer. The defendant's remedy, in such a case, lies in an application to the court, on cause exhibited, to change the place of trial to the proper county.203 Under Oregon procedure, when a defendant wishes to challenge the authority of a court to try

198 Postmaster-General v. Ustick, 4 Wash. C. C. 347; United States v. Sawyer, 1 Gall. 86; Greathouse v. Dunlap, 3 McLean, 303; McCue v. Corporation of Washington, 3 Cranch C. C. 639.

199 Litchfield v. McComber, 42 Barb. 288.

200 Kellogg v. Baker, 15 Abb. Pr. 286.

201 Russ Lumber, etc., Co. v. Garrettson, 87 Cal. 589.

202 Triscony v. Brandenstein, 66 Cal. 514.

203 Wasson v. Hoffman, 4 Col. App. 491.