in replevin suit.-Clary vs. Rolland, 24 Cal., p. 147; Mills vs. Gleason, 21 Cal., p. 274. ACTIONS ON OFFICIAL BONDS.-Averments in complaint.-Mendocino Co. vs. Morris, 32 Cal., p. 145; Ghirardelli vs. Bourland, 32 Cal., p. 585; Van Pelt vs. Littler, 14 Cal., p. 194; Sacramento Co. vs. Bird, 31 Cal., p. 66. 63. ACTION FOR COLLECTION OF TAXES.-People vs. Pico, 20 Cal., p. 595; People vs. Holladay, 26 Cal., p. 300. 64. CLAIMS AGAINST ESTATES OF DECEDENT'S EXECUTORS AND ADMINISTRATORS.-The failure of plaintiff to aver in complaint, in an action upon a claim against an estate, its presentation to and rejection by the administrator, is an objection that is demurrable on the ground that the complaint does not state facts sufficient to constitute a cause of action.Ellissen vs. Halleck, 6 Cal., p. 393; Falkner vs. Folsom, id., p. 412; Hentsch vs. Porter, 10 id., p. 558; but these cases are overruled by Fallon vs. Butler, 21 Cal., p. 24; and the correctness of the latter decision is questioned in Ellis vs. Polhemus, 27 Cal., p. 354. The case of Ellissen vs. Halleck, 6 Cal., p. 393, is referred to in the following cases: Falkner vs. Folsom's Ex'trs, 6 Cal., p. 412; McCann vs. Sierra Co., 7 Cal., p. 123; Williamson vs. Plattan, 9 Cal., p. 500; Piercy vs. Sabin, 10 Cal., p. 30; Willis vs. Farley, 24 Cal., p. 498. 65. COMPLAINT BY OR AGAINST EXECUTOR, ETC.Complaint must allege that executor is entitled to sue in that capacity; or if suit is against an administrator, the complaint must show that the party sued was appointed and was acting in such capacity.-Barfield vs. Price, 40 Cal., p. 536. 66. COMPLAINT AGAINST ABSENT DEBTOR.-If the plaintiff desire 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 complaint discloses such remedy at law, it will be dismissed upon demurrer. Lupton vs. Lupton, 3 Cal., p. 120. 67. FILING SUPPLEMENTAL COMPLAINT.-It was held that it is no objection to a supplemental complaint that it prays for a different relief, and fails to bring in all the other creditors, who are alleged by the defense as entitled to a ratable distribution. (See facts.)Baker vs. Bartol, 6 Cal., p. 483. 68. DEMAND FOR RELIEF.-See Sec. 580, post. The 44-VOL. I. What eauses of Court will grant such relief as the facts stated in the complaint will justify.-People vs. Turner, 1 Cal., p. 152; Truebody vs. Jacobson, 2 Cal., p. 269; Rollins vs. Forbes, 10 Cal., p. 299. A complaint in trespass may conclude with a demand for injunction.-Gates vs. Kieff, 7 Cal., p. 125. So, also, where action is brought to test priority of appropriation of water.-Marius vs. Bicknell, 10 Cal., p. 217. Demand for treble damages must be expressly inserted. How inserted, see Chipman vs. Emeric, 5 Cal., p. 239. 427. (§ 64.) The plaintiff may unite several causes action may of action in the same complaint, where they all arise be joined. out of: 1. Contracts, express or implied; 2. Claims to recover specific real property, with or without damages for the withholding thereof, or for waste committed thereon, and the rents and profits of the same; 3. Claims to recover specific personal property, with or without damages for the withholding thereof; 4. Claims against a trustee by virtue of a contract, or by operation of law; 5. Injuries to character; The causes of action so united must all belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated; but an action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to character or to the person. NOTE.-1. CONTRACTS EXPRESS OR IMPLIED.-A cause of action against an indorser on the note, and a cause of action in equity to foreclose the mortgage, were held to be properly joined.-Eastman vs. Turman, 24 Cal., p. 382. Mortgage assigned as security for debt due by mortgagee-assignee may unite his causes of action against mortgagor, mortgagee, and parties having liens or incumbrances on the property mortgaged, and make these persons all parties.-Farwell vs. Jackson, 28 Cal., p. 107. Action for foreclosure of mortgage made by husband and wife together to secure a note made only by husband, cause of action against husband for amount due on note and interest, and also against husband and wife for foreclosure and sale of property, held to be properly united.-Rollins vs. Forbes, 10 Cal., p. 299. Legal and equitable claims, founded upon instruments in writing, may be united.-Gray vs. Dougherty, 25 Cal., p. 266. Cause of action for enforcement of trust, either express or implied, may be united with cause of action to enforce vendor's lien existing without any written contract. Both of the claims being founded on trusts, one lying in contract and the other arising by act and operation of law.-Burt vs. Wilson, 28 Cal., p. 638. See, also, generally, under this head, Keller vs. Hicks, 22 Cal., p. 457; Weaver vs. Conger, 10 Cal., p. 233. 2. CLAIMS TO RECOVER SPECIFIC REAL PROPERTY, WITH OR WITHOUT DAMAGES, OR FOR WASTE AND THE RENTS OR PROFITS.-Sullivan vs. Davis, 4 Cal., p. 291; Gale vs. Tuolumne Water Co., 14 Cal., p. 25. 3. INJURIES TO PROPERTY.-Moore vs. Massini, 32 Cal., pp. 595, 596. Claims for value of the property destroyed, and for the damages caused by its destruction, may be united.-Tendesen vs. Marshall, 3 Cal., p. 440. Uniting claim for injury and damages.-See Fraler vs. Sears Union Water Co., 12 Cal., p. 555. 4. CAUSES OF ACTION SEPARATELY STATED.Though united in one complaint, the different causes of action must be separately stated.-McCarty vs. Fremont, 23 Cal., p. 197; Buckingham vs. Waters, 14 Cal., p. 146; Cordier vs. Schloss, 18 Cal., p. 581. Ejectment may be for two distinct pieces of land, but the two causes of action must be separately stated, affect all the parties to the action, and not require different places of trial.-Boles vs. Cohen, 15 Cal., p. 150. 5. GENERALLY.-A complaint against a Sheriff and his sureties, averring trespass of Sheriff and against his sureties as signers of the bond, and not otherwise, the causes are not properly united.-Ghirardelli vs. Bourland, 32 Cal., p. 585. Claim for damages for personal tort cannot be united with claim properly cognizable in Court of equity.-Mayo vs. Madden, 4 Cal., p. 27. A claim for the possession of real property, with damages for detention, cannot be joined in the same complaint, under any system of pleading, with a claim for consequential damages arising from a change of a road, by which a tavern keeper may have been injured in his business.-Bowles vs. Sacramento Turnpike Co., 5 Cal., p. 225. A claim for damages may be united with a demand for a statutory penalty, in an action against a Sheriff for failing to execute and return process. There is no necessity for bringing two suits.Pearkes vs. Freer, 9 Cal., p. 642. When defendant CHAPTER III. DEMURRER TO THE COMPLAINT. SECTION 430. When defendant may demur. 431. Demurrer must specify, etc. May be taken to part. May answer and demur at same time. 432. What proceedings are to be had when complaint is amended. 433. Objection not appearing on complaint, may be taken by answer. 434. Objections, when deemed waived. 430. (§ 40.) The defendant may demur to the may demur 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, or, 2. That the plaintiff has not legal capacity to sue; 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, 5. That several causes of action have been improperly united; or, 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. NOTE.-1. COURT HAS NO JURISDICTION OF THE PERSON OF DEFENDANT OR THE SUBJECT OF THE ACTION.-See Willis vs. Farley, 24 Cal., p. 491; Ellisen vs. Halleck, 6 Cal., p. 386. In Courts of gen eral jurisdiction the want of jurisdiction must appear affirmatively on face of complaint, but such is not the case with Courts of special or limited jurisdiction, and in the last named Court every fact necessary to give jurisdiction must appear in the complaint.-Doll vs. Feller, 16 Cal., p. 432. 2. PLAINTIFF HAS NOT LEGAL CAPACITY TO SUE.When plaintiff has not legal capacity to sue because he is not a real party in interest.-White vs. Mary Ann, 6 Cal., p. 462; Oliver vs. Walsh, 6 Cal., p. 456. 3. ANOTHER ACTION PENDING BETWEEN SAME PARTIES FOR SAME CAUSE.-Cunningham vs. Harris, 5 Cal., p. 81; Nickerson vs. Cal. Stage Co., 10 Cal., p. 520; Burnett vs. Kilbourne, 3 Cal., p. 327; Ayres vs. Bensley, 32 Cal., p. 620. The defense of a prior lis pendens is available only where the plaintiff, at least, in both actions, is the same person.-Certain Logs of Mahogany, 2 Sumner, p. 593; Wadleigh vs. Veazie, 3 Sumner, p. 165; O'Connor vs. Blake, 29 Cal., p. 314. 4. DEFECT OR MISJOINDER OF PARTIES.-See Sec. 434, post. Where a defect of parties is apparent upon the face of the complaint, the objection must be taken by demurrer, or the same will be waived.-Dunn vs. Tozer, 10 Cal., p. 170; Warner vs. Wilson, 4 Cal., p. 252; Andrews vs. Mokelumne Hill Co., 7 Cal., p. 330; Alvarez vs. Brannan, 7 Cal., p. 503; Rowe vs. Bacigaluppi, 21 Cal., p. 635; Mott vs. Smith, 16 id., p. 557; Sampson vs. Shoeffer, 3 id., p. 202; Beard vs. Knox, 5 id., p. 257; Tissot vs. Throckmorton, 6 id., p. 473; McKeene vs. McGarvey, 6 id., p. 498; Burroughs vs. Lott, 19 Cal., p. 125; Barber et al. vs. Reynolds, 33 Cal., p. 497. In Summers vs. Farish, the Court seem to infer that a demurrer on the ground "that the complaint does not state facts sufficient to constitute a cause of action," and which then specifies that the complaint shows no joint cause of action in the plaintiff, and that it prays for a judgment in favor of three plaintiffs for an injury done to one, was a good demurrer for misjoinder of parties; but this point was not expressly decided.-See Summers vs. Farish, 10 Cal., p. 350; but see, also, Grain vs. Aldrich, 38 Cal., p. 521; Wilson vs. Castro, 31 Cal., pp. 427-431. Although the defendant does not demur for want of parties, it does effect the power of the Court under the Code (Sec. 389, ante) from ordering other parties to be brought in, when such parties are necessary to a complete determination of the case.-Grain vs. Aldrich, 38 Cal., p. 514. Complaint is not demurrable because the christian names of parties are not stated.-Nelson vs. |