an action in replevin in the county in which such action is brought, unless it was alleged in the complaint that the property was taken in such county, he should distinctly specify that objection in his demurrer, and thereby call the attention of the court to the point he asked to have decided.204

3160. On the ground of ambiguity.

[TITLE.]

Form No. 682.

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

That the complaint is ambiguous, unintelligible, and uncertain. [Point out specially in what the ambiguity or uncertainty consists.]

§ 3161. Demurrer lies. This cause of demurrer may be interposed when the complaint is "ambiguous, unintelligible, or uncertain." Under this subdivision it is necessary for the pleader to point out wherein the complaint is ambiguous, unintelligible or uncertain, or it will be disregarded.205 The defendant is entitled to a distinct averment in the complaint of the facts which the plaintiff claims to exist, and if the averments are in the alternative, the complaint is ambiguous, even if either averment states a cause of action.206 Mere indefiniteness and uncertainty are not enough to sustain a demurrer in the state of New York.207 In Ohio, demurrer will not lie for indefiniteness or uncertainty. So a demurrer will not lie for uncertainty in New York. The omission to state the time and place of slander is not a ground for demurrer; the remedy is by motion.208 So, where an executor united notes payable to his testator.209 But

204 McCarty v. Wintler, 17 Oreg. 393.

205 Blanc v. Klumpke, 29 Cal. 156; Yolo Co. v. Sacramento, 36 id. 193; Lorenzana v. Camarillo, 45 id. 125; Jacobs v. Union Mercantile Co., 17 Mont. 61.

206 Jamison v. King, 50 Cal. 132. For a special case of ambiguity, see Tomlinson v. Monroe, 41 id. 94.

207 Chesbrough v. New York & Erie R. R. Co., 13 How. Pr. 557; People ex rel. Crane v. Ryder, 12 N. Y. 433; Roeder v. Ormsby, 13 Abb. Pr. 334.

208 Finnerty v. Barker, 7 N. Y. Leg. Obs. 316. If the pleadings are not full and accurate, the remedy is by motion to cure the defect. Puget Sound Iron Co. v. Worthington, 2 Wash. Ter. 472; Jackson v. Jackson, 17 Oreg. 110; Freeksen v. Turner, 19 id.

209 Welles v. Webster, 9 How. Pr. 251.

a demurrer will lie for uncertainty in California.210 A demurrer on the ground of ambiguity should be overruled if enough appears to render the pleading demurred to easy of comprehension and free from reasonable doubt.211 The question of ambiguity is not raised on demurrer for want of facts.212 In California, if there are any valid objections to a complaint on the ground of ambiguity or uncertainty, such objections can only be taken by special demurrer.213 And a special demurrer to a complaint, assigning as a ground that it is ambiguous, unintelligible, and uncertain, is properly overruled if the complaint is not subject to each of the objections assigned.214 But it is held that a conjunctive demurrer on the general grounds of ambiguity, unintelligibility, and uncertainty will be regarded only as a demurrer for uncertainty, where the only specifications made are on the ground of uncertainty.215 Defects in pleadings which ' make them uncertain are special grounds of demurrer under the Code of Idaho, and can not be taken advantage of on general demurrer.216 A demurrer alleging that the complaint is "multifarious and improperly confounds two distinct causes of action not belonging to the same class," and "that the complaint is ambiguous, unintelligible and uncertain," is held not to be sufficiently definite.217 The objection that the averments of a complaint are contradictory must be taken by special demurrer, 218 And a complaint is demurrable for ambiguity and uncertainty if its allegations are inconsistent with an exhibit thereto attached.2 219 The rule that error which does not affect substantial rights is to be disregarded is applied to a demurrer for ambiguity.220

210 Cal. Code Civ. Pro., § 430, subd. 7.

211 Salmon v. Wilson, 41 Cal. 595.

212 Slattery v. Hall, 43 Cal. 191. Time to object for ambiguity. See Spencer v. Railway Co., 11 Mont. 164.

213 Colton v. Onderdonk, 69 Cal. 155; Kirsch v. Derby, 96 id. 602. 214 Spargur v. Heard, 90 Cal. 221; and see White v. Allatt, 87 id. 245; Wilhoit v. Cunningham, id. 453.

215 Field v. Andrada, 106 Cal. 106; compare Greenebaum v. Taylor, 102 id. 624; Ryan v. Jacques, 103 id. 280.

216 Palmer v. Utah, etc., R. R. Co., 2 Idaho, 290.

217 Owen v. Oviatt 4 Utah, 95.

218 Heeser v. Miller, 77 Cal. 192.

219 Palmer v. Lavinge, 104 Cal. 30; see § 3140, ante.

220 Gassen v. Bower, 72 Cal. 555; compare Alexander v. Central Lumber & Mill Co., 104 id. 532; Consolidated Nat. Bank v. Pacific Coast Steamship Co., 95 Cal. 1.

§ 3162. Ejectment. In ejectment, where the complaint avers that "the plaintiff on a day named was, and ever since has been, and still is, the owner in fee simple, seised and possessed," etc.; "that, on a day thereafter named, and while the plaintiff was so the owner in fee simple, seised and possessed, defendants entered and ousted him, and from thence hitherto have and still do withhold the same," etc., the complaint may be demurred to for ambiguity.221

§ 3163. Official bond. In an action on an official bond, if the complaint alleges the execution of the bond, and a copy of the bond annexed should not contain the signature of the principal, defendant may demur for ambiguity.222 A complaint in an action on the bond given by a tax collector is not ambiguous and uncertain because it does not aver that any of the money sued for was collected on account of foreign miners' licenses.2

223

§ 3163a. Uncertainty of description — conjunctive demurrer. A demurrer to a complaint upon the ground that it is ambiguous, unintelligible, and uncertain, for the reason that it does not contain a sufficient description of the property sued for, if in fact the complaint is not ambiguous nor unintelligible, does not raise the question of uncertainty as to the description.224

§ 3164. Sale and delivery. A declaration setting forth that plaintiff had purchased a quantity of goods from W. and P., “then and there acting as agent of the defendant," is only another form of declaring that he had purchased from the defendant, and is sufficiently certain to prevent any misapprehension of its meaning, and is good on demurrer.2

§ 3165. Several grounds of demurrer.

[TITLE.]

Form No. 683.

225

The defendant demurs to plaintiff's complaint on the following grounds:

I. That the court has no jurisdiction of the person of the defendant [or, as the case may be of the subject of the action]. II. That plaintiff has not legal capacity to sue [state why].

221 Brown v. Martin, 25 Cal. 82.

222 Mendocino Co. v. Morris, 32 Cal. 145.

223 People v. Love, 25 Cal. 520.

224 Greenbaum v. Taylor, 102 Cal. 624.

225 Cochran v. Goodman, 3 Cal. 245.

III. That there is another action pending between the same parties, for the same cause of action.

IV. That there is a defect [or misjoinder] of parties plaintiff [or defendant]. [State in what the defect or misjoinder consists.]

V. That several causes of action have been improperly united in this [state how improperly united].

VI. That the complaint does not state facts sufficient to constitute a cause of action. [No reasons need be assigned under this subdivision.]

VII. That the complaint is ambiguous, unintelligible, or uncertain [point out specially in what the ambiguity or uncertainty consists].228

§ 3165a. Breach of contract nonpayment. A complaint which entirely fails to state a breach of the contract sued upon, or to allege the nonpayment of money sought to be recovered, states no cause of action, and may be assailed by general demurrer. But if there is not an entire failure to state the fact of breach or nonpayment, and the averment is simply uncertain and defective, the defect can only be reached by special demurrer particularly designating the specific point at which it is aimed.227

When a

§ 3165b. Waiver of objections — failure to demur. cause is tried without objection to the complaint by demurrer, either general or special, as if the complaint were in all respects sufficient, no error or defect therein which does not affect the substantial rights of the parties will be ground for reversal of the judgment.228 So, objections to a complaint which are.

226 A pleading should not be demurred to: 1. Unless it is clearly demurrable; and, 2. Except for cause which clearly appears upon the face of the complaint. Davy v. Betts, 23 How. Pr. 395; Dillaye v. Wilson, 43 Barb. 261. The fact that the statute gives several instances wherein a demurrer may be made affords no excuse for exhausting the list on every complaint demurred to, although several causes of demurrer may be assigned.

227 Grant v. Sheerin, 84 Cal. 197. In an action to recover money upon a contract, the failure to pay constitutes the breach, and must be alleged. And an allegation that a specified amount is "now due and owing" to the plaintiff is a mere conclusion of law, and is insufficient as an averment of the fact of nonpayment. Ryan v. Holliday, 110 Cal. 335; Richards v. Land Co., 115 id. 642. 228 People v. Reis, 76 Cal. 269; Reynolds v. Lincoln, 71 id. 183.

grounds of special demurrer are waived where the demurrer is general and no special grounds are specified therein.229 Moreover, in aid of the judgment, the complaint must receive as favorable an interpretation as its general scope will warrant.230 Where no demurrer is interposed to the complaint, all merely technical objections thereto are waived.231 But the ground of a general demurrer is neither waived by failure to demur nor by consent that the demurrer be overruled.232 The submission of a demurrer without argument is not a waiver of any objection raised thereby.233 Nor is the right to demur waived by calling for a bill of particulars.234 The objection to misjoinder of parties appearing upon the face of the complaint or petition is waived by failure to specify it properly as a ground of demurrer, and can not be thereafter urged.2 When defendants enter upon and proceed to trial upon the merits without demanding a ruling upon a demurrer they waive the demurrer.236 If the defendant demurs and afterwards answers, but before trial withdraws the answer and allows judgment to be entered, it will be presumed that he waived the demurrer, where the record discloses nothing to the contrary.237 But a demurrer is not waived by the filing of an answer upon leave given by the court after the demurrer is overruled.238 Objections against a 229 Daggett v. Gray, 110 Cal. 169.

235

230 Fudickar v. Irrigation District, 109 Cal. 29; and see Glide v. Dwyer, 83 id. 477.

231 Dennison v. Chapman, 105 Cal. 447; and see Orman v. Mannix, 17 Oreg. 564.

232 Evans v. Gerken, 105 Cal. 311; Porter v. Booth, 1 S. Dak. 558. 233 Richards v. Travelers' Ins. Co., 80 Cal. 505.

234 Mulvey v. Staab, 4 N. Mex. 50.

235 O'Callaghan v. Bode, 84 Cal. 489; and see, also, People v. District Court, 18 Col. 293; Ralph v. Lomer, 3 Wash. St. 401; § 3110,

ante.

236 Danielson v. Gude, 11 Col. 87; and see, to same effect, Hockaday v. Commissioners, 1 Col. App. 362; Guthrie v. Phelan, 2 Idaho, 90; Francisco v. Beuepe, 6 Mont. 243; Wright v. Sherman, 3 S. Dak. 290; Olds v. Cary, 13 Oreg. 362; Tillmore v. Wells, 10 Col. 228; Spanish Fork City v. Hopper, 7 Utah, 235.

237 Evans v. Jones, 10 Utah, 182; Brooks v. Douglass, 32 Cal. 209.

238 Curtiss v. Bachman, 84 Cal. 216. Under Utah Code of Civil Procedure a party does not waive his demurrer by filing an answer at the same time or after the demurrer or by going to trial upon his answer, but it is questioned whether this applies to a demurrer that is special for ambiguity and uncertainty. Henderson v. Turngren, 9 Utah, 432.