alleging that a judgment relied on by the plaintiff was obtained by fraud and collusion between parties named is sufficiently definite and certain, without specifying the acts which show fraud and collusion.173 An answer presents a good defense to an action which is brought on the ground of fraud, if it states circumstances from which it can be reasonably inferred that the fraud charged could not have been practiced.174 The defendant answers to the complaint: That the plaintiff is not of the age of twenty-one years [if a female, eighteen years]; or that at the commencement of this action the plaintiff was not the age of [twenty-one] years, and has no guardian appointed herein. The defendant answers to the complaint: That at the time of making the supposed agreement [or of the delivery of the goods] mentioned therein, he was under the age of [twenty-one] years, to-wit, of the age of years and said agreement did not relate to personal property in the immediate possession and control of this defendant, nor for things necessary for his support. § 3281. Essential allegations. In all this class of actions, where the disability of defendant is claimed, such as infancy, lunacy, etc., the facts causing such disability should be in all cases specially pleaded; for, in general, such disability can not be proven unless pleaded.175 how pleaded in answer. See De Votie v. McGerr, 15 Col. 467; 22 Am. St. Rep. 426. In an action to foreclose a chattel mortgage, a plea that the mortgage was obtained by fraud and misrepresentation, without specifying in what it consisted, is faulty. Bennett v. Reef, 16 Col. 430. Allegation in answer that conveyance was made with intent to delay and defraud the grantor's creditors — sufficiency. See Probert v. McDonald, 2 S. Dak. 495; Reese v. Kinkead, 20 Nev. 65. 173 Culver v. Hollister, 17 Abb. Pr. 405. 174 Burk v. Stewig, 21 Tex. 418. 175 See Young v. Bell, 1 Cranch C. C. 342; Roe v. Angevine, 7 Hun. 679; Mott v. Burnett, 2 E. D. Smith, 50; Fay v. Burditt, 81 The defendant answers to the complaint: I. That the plaintiff was, at the commencement of this action, and still is the wife of one A. B., who is still living at with this plaintiff. II. That this action does not concern her separate property, or her right or claim to a homestead. § 3283. Essential allegations-effect of divorce. Where the disability of the plaintiff, who is a married woman, does not appear upon the face of the complaint, the defendant, if he intends to avail himself of the coverture as a defense to the action, should set it up in his answer. Such objection is waived by a general denial.176 An action brought in the names of husband and wife, to recover wife's separate estate, does not abate in consequence of divorce and subsequent marriage of wife with another.177 Where the husband and wife are joined as plaintiffs, and the contract sued on and set forth in the complaint was made between the husband only and the defendants, the name of the wife was mere surplusage, and not a defect of parties under the Code, and might have been stricken out on notice, if insisted upon.' 178 Ind. 433; 42 Am. Rep. 142. As to disabilities of minors, their rights, the disaffirmance of contracts by them, their contracts for necessaries and obligations entered into under the express authority of a statute, see Cal. Civil Code, §§ 33-37, and Id., § 264 et seq. 176 Dillaye v. Parks, 31 Barb. 132; Belville v. Cox, 109 N. C. 265; see Cal. Code Civ. Pro., § 370. In an action on contract against a married woman, in those states in which she may enter into any contract, the same as if she were sole, a plea of coverture, without more, is not sufficient in law as a defense. Rose v. Otis, 18 Col. 59; and see Brice v. Miller, 35 S. C. 537; Hansee v. Fiero, 10 N. Y. Supp. 494; Cook v. Walling, 117 Ind. 9; 10 Am. St. Rep. 17; Snell v. Snell, 123 Ill. 403; 5 Am. St. Rep. 526. In plea of coverture in abatement, the allegations recognized as necessary are, that of coverture at the time of the commencement of the action and its continuance by the continued life of the husband up to the time of filing the plea. Atwood v. Higgins, 76 Me. 423. 177 Calderwood v. Peyser, 31 Cal. 333. 178 Warner & Wife v. Steamship Uncle Sam, 9 Cal. 697. The defendant answers to the complaint: That at the time of making the agreement [or of the delivery of the goods mentioned therein] she was the wife of J. K. § 3285. Marriage. not abate an action.179 The marriage of a female defendant does But at common law, the marriage of a female complainant abates the suit, and it must be revived either in favor of or against her husband.180 § 3286. Marriage of defendant after the contract and before the action. [TITLE.] Form No. 724. The defendant answers to the complaint: with I. That she was, at the commencement of this action, and still is the wife of A. B., who now resides at this defendant. II. That this action does not concern her separate property, or her right or claim to the homestead property. § 3287. Arbitration and award. The plea of coverture, and that the defendant's husband did not consent to the arbitration upon the award in which a judgment was founded, is not sufficient in proceeding by scire facias to revive the judgment. Though this plea might be a good defense to an action on the judgment, yet, until such judgment is set aside, the defendant can not resist the scire facias, the object of which is to enforce process upon such judgment.181 § 3288. Charging separate estate. In an action brought to charge the separate estate of a married woman, when the coverture is alleged in the complaint, a defense that the defendant is a married woman is bad on demurrer, for it sets up no new matter;182 and such an answer is insufficient.183 179 Campbell v. Bowne, 5 Paige Ch. 34. 180 Quackenbush v. Leonard, 10 Paige, 131. 181 Taylor v. Harris, 21 Tex. 438. 182 Aiken v. Clark, 16 Abb. Pr. 328. 183 Id. A married woman may answer separately, where homestead or her separate estate is involved.184 § 3289. Impotence. Impotence does not render a marriage void, but only voidable, and the validity of a marriage can not be impeached on that ground after the death of one of the parties. Therefore the right of a husband to administer his wife's estate can not be disputed on the ground of the nullity of the marriage by reason of his impotence.185 § 3290. Promissory note. An answer upon a promissory note that the maker is a married woman is sufficient as a confession and avoidance, 188 The defendant answers to the complaint: I. That A. B. is improperly joined as a plaintiff [or defendant] in this: that he has no interest in the subject-matter in controversy [or otherwise state reasons]. § 3292. Misjoinder of parties. Where a misjoinder of parties plaintiff does not appear upon the face of the complaint, and the objection is not taken by answer, it is deemed waived.187 Misjoinder of parties plaintiff, owing to matters which have occurred pending the action, must be taken by supplemental answer, or it is waived.188 Objection should be taken by de 184 Moss v. Warner, 10 Cal. 296; Harlay v. Ritter, 13 How. Pr. 147; Phillips v. Burr, 4 Duer, 113; see, also, Cal. Code Civ. Pro., $$ 370, 371. 185 A. v. B., L. R., 1 P. & D. 559. 186 Scudder v. Gori, 18 Abb. Pr. 223. 187 Hastings v. Stark, 36 Cal. 122; Trenor v. C. P. R. R. Co., 50 id. 223; see Minter v. Durham, 13 Oreg. 470; Smith v. Dorn, 96 Cal. 73; Asevado v. Orr, 100 id. 293. As to nonjoinder of parties plaintiff in partition, see Sutter v. San Francisco, 36 Cal. 112. 188 Calderwood v. Peyser, 31 Cal. 333; Barstow v. Newman, 34 id. 90. As to joinder of plaintiffs, see Cal. Code Civ. Pro., §§ 378-384; Frost v. Harford, 40 Cal. 165; Powell v. Powell, 48 id. 234; Andrews v. Pratt, 44 id. 319. As to nonjoinder, see McGilvery v. Morehead, 3 Cal. 271; Estell v. Chenery, id. 467; Whitney v. Stark, 8 id. 516; 68 Am. Dec. 360; Conner v. Hutchinson, 12 Cal. 126; Barber v. Cazalis, 30 id. 96; Coleman v. Clements, 23 id. 245; Jenkins v. Frink, 30 id. 586; 89 Am. Dec. 134; Smith v. Lawrence, 38 Cal. 24; 99 Am. Dec. 344; Moss v. Wilson, 40 id. 159; Gates v. Lane, 44 id. murrer or answer to the misjoinder of parties defendant. An answer will not be treated as a plea in abatement for a misjoinder of parties defendant, after the testimony has disclosed a proper cause of action against them.189 The objection that there is a misjoinder of defendants must be raised by demurrer or answer; and if not so raised, the plaintiff will be entitled to recovery against all the defendants, 190 The defendant answers to the complaint: I. That the true name of the plaintiff [or of defendant] is and ever has been which name he sues [or is sued]. and not in § 3294. Must be pleaded. ant must be pleaded in abatement.191 case of a corporation.192 In suits or proceedings by or against any corporation, a mistake in the name is waived if not pleaded in abatement. Misnomer of the plaintiff can not be taken advantage of on the trial or by plea in bar, but must be pleaded in abatement.193 Where two or more persons associated in any business transact such business under a common name, whether it comprises the names of such persons or not, the associates may be sued by such common name. It is a familiar rule that a person may be sued by a fictitious name, but a personal judgment against a fictitious person or against a person not the party to the suit would, of course, be worthless, assuming that such Misnomer of plaintiff or defend- 194 189 Warner v. Wilson, 4 Cal. 310; Dunn v. Tozer, 10 id. 170. 190 Story v. Livingston, 13 Pet. 359; Minor v. Mechanics' Bank of Alexandria, 1 id. 46; Gilman v. Rives, 10 id. 298; Chandler v. Byrd, Hempst. 222; Fosgate v. The Herkimer Manf. & Hydraulic Co., 12 N. Y. 580; compare Bates v. James, 3 Duer, 45. 191 Welsh v. Kirkpatrick, 30 Cal. 204; King v. Randlett, 33 id. 321; Mann v. Carley, 4 Cow. 148; Collmann v. Collins, 2 Hall, 569; Miller v. Stettiner, 7 Bosw. 692; Pennsylvania Co. v. Sloan, 125 Ill. 72; 8 Am. St. Rep. 337. 192 Bank of Utica v. Smalley, 2 Cow. 770; 14 Am. Dec. 526; Methodist Episcopal Church v. Tryon, 1 Den. 451; Ala., etc., R. R. Co. v. Bolding, 69 Miss. 255; 30 Am. St. Rep. 541. 193 Hanly v. Blanton, 1 Mo. 49; Boisse v. Langham, id. 572; Thompson v. Elliott, 5 id. 118. 194 Cal. Code Civ. Pro., § 388. As to effect of judgment in sucb cases, see Id.; Mulliken v. Hull, 5 Cal. 246. Vol. II-79 |