complaint which should have been made by demurrer on the ground of uncertainty can not be urged upon appeal, where no demurrer has been filed in the trial court.239

miscellaneous

§ 3165c. Complaint and demurrer thereto cases. If the facts stated in a complaint entitle the plaintiff to any relief, a demurrer for want of sufficient facts should be overruled.240 And a demurrer by all of several defendants reciting that they demur jointly as well as separately and severally to the "first, second and third paragraphs of the complaint," will be treated as a general demurrer by all the defendants, and is bad if the complaint is good against any of them.241 Under Florida procedure, the failure of the plaintiff to attach a copy of his cause of action to his declaration can not be taken advantage of by demurrer, and the defendant's proper remedy is to refuse to plead until such cause of action is filed.242 The proper remedy, under Maryland practice, where the paragraphs of a bill in equity are wrongly numbered and more than one subject-matter are embraced in a single paragraph, is by motion in the nature of a ne recipiatur, and not by demurrer.243 A complaint setting up two causes of action for breach of contract is not rendered demurrable because they are not separately stated and numbered.244 In an action upon a contract, which recognizes the right of the parties to make assignments, a complaint setting up the contract is not demurrable because the action is by and against different parties than those named in the contract, when the complaint shows their interest through assignment.245 The objection that the averments of a com

239 Seligman v. Armando, 94 Cal. 314. A defective statement of facts in a pleading is waived by joining issue upon them. Davis v. Wait, 12 Oreg. 425. Where no misjoinder of parties is specially pleaded in a joint action against two defendants it is waived. Grahn v. Stanley, 92 Cal. 86.

240 Bloomfield R. R. Co. v. Van Slike, 107 Ind. 480; Savings Fund, etc., Co. v. Harris, 142 id. 226; and see Aldrich v. Boice, 56 Kan. 170; § 3073, ante.

241 Armstrong v. Dunn, 143 Ind. 433; and see Rogers v. Schubenburg, 111 Cal. 281.

242 Martyn v. Arnold, 36 Fla. 446.

243 Chew v. Glenn, 82 Md. 370.

244 Zrskowski v. Mach, 36 N. Y. Supp. 421; Nichols v. Drew, 94 N. Y. 22.

245 Van Horne v. Watrous, 10 Wash. St. 525. Bill in equity by stockholders of corporation held good against a general demurrer. See Moyle v. Landers, 83 Cal. 579.

plaint are made on information and belief is not a ground of demurrer, either general or special.246 Error in sustaining a demurrer to a complaint on the ground of the misjoinder of several causes of action is held to be waived, if the plaintiff subsequently files an amended complaint, in which he unites and pleads anew in one count all the causes of action which had been pleaded in the original complaint.247 A stipulation that a demurrer to the complaint may be overruled, and the defendant allowed to answer within a certain time, does not estop the defendant from relying at any future stage of the case on the alleged failure of the complaint to state sufficient facts to constitute a cause of action.2 248

249

§ 3165d. Demurrer - miscellaneous decisions pertaining to. The sufficiency of a pleading is properly tested by demurrer.2 On demurrer, only the pleadings can be considered.250 The sufficiency of the facts in a pleading on a demurrer thereto can not be strengthened or weakened, added to or diminished by facts stated in other pleadings subsequently filed, or by the facts proven on the trial.251 When a demurrer is interposed, the sufficiency of any antecedent pleading to which the pleading demurred to relates may be called in question.252 A demurrer searches the entire record, and judgment should go against the party whose pleading was first defective in substance.253 Although a party may be required, on motion, to conform his statements in pleadings to the rules of good pleading, yet, as against a demurrer, evidentiary facts, and even inferences from averments amounting to mere conclusions of law, will be considered in his favor.2 254 Where a demurrer has

246 Carpenter v. Smith, 20 Col. 39; Jones v. Mining Co., id. 417; Marie v. Garrison, 83 N. Y. 23.

247 Loveland v. Garner, 71 Cal. 541; compare Wood v. Mastick, 2 Wash. Ter. 64; Loan Association v. Bradbury, 53 N. J. Eq. 960. 248 Hitchcock v. Caruthers, 82 Cal. 523.

249 The Victorian, 24 Oreg. 121; 41 Am. St. Rep. 838.

250 Madgeburg v. Uihlein, 53 Wis. 165; Iron Co. v. Central Trust Co., 90 id. 570, 580.

251 Cole v. Gray, 139 Ind. 396, 399; Elwood, etc., Oil Co. v. Baker. 13 Ind. App. 576.

252 Knight v. Lawrence 19 Col. 425.

253 Hawthorne v. State, 45 Neb. 871; Oakley v. Valley County, 40 id. 900.

254 Chambers v. Hoover, 3 Wash. Ter. 107; see Santa Barbara v. Eldred, 108 Cal. 294.

been sustained to one of the counts in a declaration, it is error to permit such count to be read to the jury, or to receive evidence thereupon.255 A patent manifestly invalid upon its face may be so declared on demurrer to the bill.256 But this power should be exercised with the utmost caution and only in the plainest cases, and if there is any doubt it should be resolved in favor of the patent.257 The question of the propriety of issuing a writ of ne exeat can not be raised by demurrer. 258

§ 3165e. Sufficiency of complaint — miscellaneous decisions. In determining the sufficiency of a complaint the averments therein can alone be considered. And the rule in some jurisdictions is, that a complaint which does not state a cause of action by its averments, without reference to exhibits, is bad on demurrer.259 The claim after judgment that a complaint is insufficient can only be sustained on the ground that the facts contained therein, even if well stated, constitute no cause of action.260 The objection that the allegata and probata do not agree can not be urged after verdict rendered, if the complaint is sufficient to support the judgment.201

§ 3165f. The same alleging unilateral contract. A complaint in an action by a vendor against a vendee of goods for refusal to accept and pay therefor, which alleges that the plaintiff entered into a contract with the defendant to furnish, sell and deliver to the defendant certain specified goods at a stipulated price named, but nowhere alleges that the defendant bought, purchased or agreed to accept or pay therefor, or any part thereof, states a unilateral contract, and is obnoxious to a general demurrer. 262

255 Luna v. Mohr, 3 N. Mex. 56.

256 Button Fastener Co. v. Schlochtmeyer, 69 Fed. Rep. 592. 257 Davock v. Railroad Co., 69 Fed. Rep. 468; Covert v. Travers, 70 id. 788; Packing Co. v. Rubber Co., 137 U. S. 445.

258 Shainwald v. Lewis, 69 Fed. Rep. 487.

259 Aultman v. Siglinger, 2 S. Dak. 442; Bowling v. McFarland, 38 Mo. 465; Larimore v. Wells, 29 Ohio St. 13; but see Taylor v. MacLea, 11 N. Y. Supp, 640; § 319, ante.

260 Rhodes v. Hutchins, 10 Col. 258; Buenz v. Cook, 15 id. 38; Bethel v. Woodworth, 11 Ohio St. 396. This objection may be taken at any time. Holly v. Heiskell, 112 Cal. 174.

261 Horn v. Hamilton, 89 Cal. 276; and see United States v. Small, 3 Wash. Ter. 478.

262 Robinson, etc., Min. Co. v. Johnson, 13 Col. 258.

3165g. The same — action for recovery of personal property. Under the Code of South Dakota, the action to recover personal property takes the place of, and is a substitute for, both the former actions of replevin and detinue. The unlawful detention is the gist of the action, and it is immaterial how the defendant acquired the possession, so far as the action to recover the property is concerned. The principal issues in the action are the plaintiff's right to possession, the defendant's unlawful detention, the value of the property, and damages for its detention.263

§ 3165h. The same failure to aver demand. When the time has come for the doing of an act, which it is the duty of the defendant to do unconditionally, no demand other than the suit itself is necessary. Nor is a demand before suit required where it appears that it would have been unavailing, and would not have changed the right and relations of the parties, or where the answer denies the relation on which the action is founded, although a demand and refusal would otherwise be a condition precedent to the right of the plaintiff to maintain the action.264 Stockholders may maintain a suit in equity against the corporation and its board of directors whenever it appears that otherwise there will be a failure of justice.285 And where it is apparent that a demand upon the managing body of the corporation would be unavailing, an action by the stockholders may be maintained without alleging or proving any notice, request, demand or express refusal.266

An ac

§ 3165i. The same action for removing fixtures. tion for damages will lie in favor of a mortgagee whose security is impaired by the removal of fixtures permanently attached to the realty, against the person or persons removing them. And a complaint against the mortgagor and another defendant claiming to be a purchaser of the fixtures, alleging that they removed such fixtures, well knowing that they would thereby impair and render insufficient the plaintiff's security, and that it was thereby rendered insufficient; that the mortgagor is insolvent, and that after foreclosure of the mortgage, an unsatis

263 Willis v. DeWitt, 3 S. Dak. 281; see § 2150, ante. 264 Cox v. Delmas, 99 Cal. 104; and see § 2104, ante.

265 Miller v. Murray, 17 Col. 408; Hawes v. Oakland, 104 U. S. 450. 268 Jones v. Pearl Min. Co., 20 Col. 417; Smith v. Dorn, 96 Cal. 73.

fied personal judgment remains for a deficiency, sufficiently states a cause of action.267

§ 3165j. The same allegation of damages. In an action by a married woman for personal injuries, she is entitled to recover damages for any impairment of her capacity, as a previously healthy woman, to earn money, and, when so injured as to cause great pain and suffering in and about the womb and back, the damages thereby resulting through impairment of her capacity to work need not be specially pleaded, but may be recovered under a general averment.268

§ 3165k. The same - alleging mutual mistake. In an action to reform an agreement for the sale of land, an averment in the complaint, to the effect that by mistake a description of the land different from that intended by the parties to the agreement was inserted therein, is, in the absence of a demurrer, a sufficient allegation that the mistake was a mutual mistake of the parties to the agreement, and a finding in the language of the complaint is sufficient to support the judgment.269

§ 31651. The same- - pre-emption claim conclusion of law. Where, in an action against a pre-emption claimant, the plaintiff claims priority of right over the defendant to become the purchaser from the government, and to receive a patent for the land in controversy, under a pre-emption claim, it is not enough to allege he had or has such right, as that allegation is a mere conclusion of law, but the plaintiff must show the state of facts conferring such right, and also that he took the legal steps to avail himself thereof.270

§ 3165m. The same - action to determine right to patent. In an action under section 2326, U. S. Revised Statutes, to determine the right to a patent to mineral land, each party is held to be an actor, and each must establish his claim against the government, as well as against his adversary. Each party must allege, in his pleading, all the facts essential to the validity of his claim, as, for example, the citizenship of the 267 Lavenson v. Standard Soap Co., 80 Cal. 245; 13 Am. St. Rep. 147.

268 Hamilton v. Railway Co., 17 Mont. 334.

269 Newton v. Hull, 90 Cal. 487.

270 Aurrecoechea v. Sinclair, 60 Cal. 532; Buckley v. Howe, 86 id. 596.