4

tained upon this ground unless it is apparent that, taking all the allegations to be true, no cause of action is stated. The general rule is, if the complaint does not state a case upon which, if uncontradicted, the plaintiff has a right to recover, a demurrer is the proper remedy. Or if the complaint omits a material fact necessary to the plaintiff's cause of action, a demurrer for the want of sufficient facts will be sustained. So a demurrer will be sustained where the complaint fails to show any connection between the facts alleged and a party defendant, by whom the demurrer is interposed." But a joint demurrer by several defendants cannot be sustained if the complaint states a good cause of action against either of the parties demurring. And a general demurrer to a complaint or petition which contains several causes of action cannot be sustained if any one of them is good. If the complaint or petition contains the elementary constituents of a good cause of action, presented in any aspect, a demurrer thereto will be overruled, even though the cause of action be not the one intended.10 The proper remedy for a defective or imperfect statement of facts is a motion to make the complaint or petition more certain and specific in that respect, and not a demurrer for the want of facts." So a complaint which avers facts entitling the plaintiff to some relief, though not to all the relief prayed, is sufficient to repel a demurrer thereto for want of facts.12 But it is held that a demurrer interposed to a complaint, upon the ground that it does not state facts sufficient to constitute a cause of action, should be sustained, if the facts stated in the complaint do not entitle the plaintiff to the relief specifically demanded therein, even though they would have entitled him to some other or different relief had he demanded it.13 Whether or not a cause of action is stated in a complaint depends upon an adjudi

cation by the court, and until so decided its averments must be deemed sufficient.14 A demurrer to a complaint, on the ground that it does not state facts sufficient to constitute a cause of action, may state the objection in the language of the statute.15 But in such demurrer the word "complaint" is not equivalent to the words "cause of action," prescribed by statute.16 A demurrer to a complaint for a want of sufficient facts presents no question as to the jurisdiction of the court; 17 nor does it have any applicability to the capacity of the plaintiff to sue; 18 nor does it reach a defect of parties; 19 nor extend to a date in the jurat to the verification; 20 nor, it seems, to the caption of a complaint or petition in which there is a misnomer.21 Under the Code system of pleading, causes of demurrer must conform to the specifications of the statute.22

1 N. Y. Code Civ. Proc. 488, subd. 8; Cal. Code Civ. Proc. 430, ? subd. 6; N. C. Code Civ. Proc. 95, subd. 6; 2 Ohio Rev. Stats. 5062, subd. 8; Trumbo v. Finley, 18 S. C. 305; Willard v. Comstock, 58 Wis. 565; Powell v. Allen, 75 N. C. 450. And he may demur on this ground at any stage of the case: People v. Booth, 32 N. Y. 397; Gray v. Palmer, 2 Robt. 500; Gould v. Glass, 19 Barb. 179; Hayes v. Lewis, 17 Wis. 210; but the demurrer goes only to defects of substance, not of form: Morrow v. Lawrence Univ. 7 Wis. 574; Bach v. Bell, 7 Wis. 433; Mills v. Rice, 3 Neb. 87; Loomis v. Tifft, 16 Barb, 541; Marie v. Garrison, 83 N. Y. 14; Childers v. Verner, 21 S. C. 4; Wallace v. Hunt, 22 Tex. 647; Moreland v. Atchison, 34 Tex. 355; McCall v. Sullivan, 1 Tex. Ct. App. (Civ. Cas.) 1; Harrington v. Galveston Co. 1 Tex. Ct. App. (Civ. Cas.) 792.

2 Campbell v. Taylor, Sup. Ct. Utah, 3 West C. Rep. 541.

3 Houghtaling v. Hills, 58 Iowa, 287; Pierson v. McCurdy, 61 How. Pr. 134; Fleischmann v. Bennett, 23 Hun, 200; 87 N. Y. 231; Calvo v. Davies, 8 Hun, 222; 73 N. Y. 211; Kuehnemundt v. Haar, 14 Jones & S. 188.

4 People v. Mayor etc. 28 Barb. 240; 17 How. Pr. 56; 8 Abb. Pr. 7; Spear v. Downing, 34 Barb. 522; 12 Abb. Pr. 437; 22 How. Pr. 30.

5 Van Liew v. Johnson, N. Y. Sup. Ct. 6 Thomp. & C. 648; White v. Brown, 14 Abb. Pr. 282; Johnston Harvester Co. v. Bartley, 94 Ind. 131; Tolmie v. Dean, 2 Wash. T. 46; Leak v. Commissioners etc. 64 N. C. 132. It has been held a ground of demurrer for insufficient facts that suit was brought before the cause of action was due: Hicks v. Branton, 21 Ark. 186; Harvey v. Chilton, 11 Cal. 114. But that the objection should be raised by answer: See Smith v. Holmes, 19 N. Y. 271; Mack v. Burt, 5 Hun, 28.

6 Sinclair v. Fitch, 3 Smith, E. D. 677; Chase v. Vanderbilt, 5 Jones & S. 334; Webb v. Vanderbilt, 7 Jones & S. 4; American But

ton Hole Co. v. Gurnee, 44 Wis. 49. A complaint by several jointly, which fails to show a joint cause of action in all, is bad on demurrer for want of sufficient facts: Darkies v. Bellows, Ind. 64. And see ¿50, ante.

7 Teter v. Hinders, 19 Ind. 93; Axtel v. Chase, 83 Ind. 553; Belknap v. Caldwell, 83 Ind. 14; brownson v. Gifford, 8 How. Pr. 389; Fish v. Hose, 59 How. Pr. 258; Mo. Valley Land Co. v. Bushnell, 11 Neb. 12; Dunn v. Gibson, 9 Neb. 513, McGonigal v. Colter, 32 Wis. 614. Where two causes of action upon contract are joined in the same action, a demurrer to the complaint, upon the ground that all of the defendants are not affected by both causes, lies at the instance of a defendant who is so affected: Nichols v. Drew, 94 N. Y. 22.

& Hale v. Omaha Nat. Bank, 49 N. Y. 626; Hyde v. Supervisors etc. 43 Wis. 129; Mansfield etc. R. R. Co. v. Hall, 26 Omo St. 310; Bruce v. Benedict, 31 Ark. 301; First Nat. Bank v. How, 28 Minn. 150; Danalson v. County of San Miguel, 1 New Mexico, 263; Seaver v. Hodgkin, 63 How. Pr. 128.

9 Newbery v. Garland, 31 Barb. 121; People v. Mayor etc. 23 Barb. 240; 17 How. Pr. 56; Roe v. Lincoln County, 56 Wis. 66; Williams v. Sexton, 19 Wis. 42; Williams v. Warnell, 25 Tex. 612; Edgar v. Galveston, 46 Tex. 421; Lyle v. Harris, 1 Tex. Ct. App. (Civ. Cas.) ? 71.

10 Mackey v. Auer, 8 Hun, 180; Witherhead v. Allen, 3 Keyes, 562; 4 Abb. Ct. App. 628.

11 Wright v. Williams, 83 Ind. 421; Johnston Harvester Co. v. Bartley, 94 Ind. 131; Baxter v. State, 9 Wis. 38; Simpson v. Prather, 5 Oreg. 86; Bradley v. Parkhurst, 20 Kan. 462; Union Bank v. Bell, 14 Ohio St. 200; Everett v. Waymire, 30 Ohio St. 308. But where a pleading is so vague as not to state á cause of action, a demurrer will fie: City etc. v. Connersville Hydraulic Co. 86 Ind. 235. Under the Colorado Code the objection for uncertainty is raised by demurrer: Manning v. Haas, 5 Colo. 37.

12 Bayless v. Glenn, 72 Ind. 5; Moritz v. Splitt, 55 Wis. 441; Hewitt v. Powers, 84 Ind. 295; Etna Life Ins. Co. v. Nexsen, 84 Ind. 347; Price v. Brown, 60 How. Pr. 511; 10 Abb. N. C. 67; Lockwood v. Bigelow, 11 Minn. 113. And see White v. Lyons, 42 Cal. 279; Wright v. Wright, 54 N. Y. 437; Canty v. Latterner, 31 Minn. 239.

13 Edson v. Girvan, 29 Hun, 422. See Kewaunee Co. v. Decker, 30 Wis. 624. When a complaint attempts but fails to state a cause of action in equity, a general demurrer thereto will be sustained, notwithstanding allegations therein, which, if eliminated and standing by themselves, might be sufficient to constitute a cause of action at law: Delmer v. Railroad Co. 57 Wis. 218; Gormely v. Gymnastic Assoc. 55 Wis. 352; Lawson v. Menasha Wooden Ware Co. 59 Wis. 393.

14 Higgins v. Crichton, 63 How. Pr. 354; 2 Civ. Proc. R. 317.

15 44, ante; Howland v. Kenosha Co. 19 Wis. 247; Monette v Cratts, 7 Minn. 234; Kent v. Snyder, 30 Cal. 666. But see Love v. Commissioners etc. 64 N. C. 706. If the defendant specifies in his demurrer certain grounds of insufficiency, he can only rely upon the defects specified. But it is otherwise if the demurrer is general and without specification: Lopez v. Central Arizona Min. Co. 1 Ariz. 464; Nellis v. De Forest, 16 Barb. 61.

16 Pine Civil Township v. Huber Manuf. Co. 83 Ind. 121.

17 Whitewater R. R. Co. v. Bridgett, 94 Ind. 216; Toledo etc. R. R. Co. v. Milligan, 52 Ind. 505; Wilson v. Mayor etc. 4 Smith, E. D. 706; 15 How. Pr. 500; 6 Abb. Pr. 6.

18 Irving Nat. Bank v. Corbett, 10 Abb. N. C. 85; Hobart v. Frost, 5 Duer, 671.

19 Grain v. Aldrich, 38 Cal. 514; Burhop v. Milwaukee, 18 Wis. 431. Nor an excess or misjoinder of parties: Eldridge v. Bell, 12 How. Pr. 547; Schiffer v. Eau Claire, 51 Wis. 385; Nevil v. Clifford, 55 Wis. 161. 20 State Bank v. Shaw, 5 Hun, 114.

21 Paola Town Co. v. Krutz, 22 Kan. 729. Nor to the prayer for judgment or relief: Tewksbury v. Schuenberg, 41 Wis. 584; Colstrum v. Minneapolis etc. R. R. Co. 31 Minn. 367; Hiatt v. Parker, 29 Kan. 765, 771; Garner v. Thorn, 56 How Pr. 452; Garner v. Harmony Mills, 6 Abb. N. C. 212; Bennett v. Preston, 17 Ind. 291.

22 Whitewater R. R. Co. v. Bridgett, 94 Ind. 216. And see? 41, ante. Under Nebraska practice, when the objections stated in a demurrer are not those provided by the Code, it can only be considered as a general demurrer that the petition does not state facts sufficient to constitute a cause of action: Neb. Comp. Stats. 543, ₹ 95; McClary v. Sioux City etc. R. R. Co. 3 Neb. 44. And see Turner v. Althaus, 6 Neb. 54, 84.

54. Ambiguity, etc.-Generally speaking, the indefiniteness and uncertainty of a pleading, under the Codo system, cannot be remedied or taken advantage of by demurrer, but by motion only. If the intention of the pleader is apparent, or the requisite allegations can be gathered from all the averments in the complaint or petition, the demurrer must be overruled, although the pleading lacks definiteness and precision, and the facts are imperfectly, informally, or only argumentatively averred. In other words, uncertainty in a pleading is not presented by a demurrer, unless the uncertainty be such that no cause of action is stated. But in some of the States, as in California, for instance, it is expressly provided that a demurrer may be interposed when the complaint is "ambiguous, unintelligible, or uncertain." And it is held that if the averments in a complaint are in the alternative, the complaint is ambiguous, even if either averment states a cause of action.3 But it is necessary for the pleader to point out wherein the complaint is "ambiguous, unintelligible, or uncertain," or it will be disregarded. The objection to ambiguity cannot be taken under a general demurrer that the complaint does not state facts sufficient to constitute

a cause of action. So, 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.8 The objection for uncertainty is also raised by demurrer under the Colorado Code. But in most of the States where the Code system prevails, the rule is that uncertainty in pleading can be attacked only by motion, and if from inspection of a complaint or petition the whole or any part thereof can be resolved into a cause of action, a demurrer thereto will be overruled.10 And a rule of construction adopted is, that, cn demurrer, all reasonable intendments will be indulged in, in support of the pleading demurred to."

1 Richards v. Edick, 17 Barb. 260; Chesbrough v. N. Y. etc. R. R. Co. 13 How. Pr. 557; 26 Barb. 9; People v. Ryder, 12 N. Y. 433; Meyer v. County of Dubuque, 43 Iowa, 592; Trustees etc. v. Odlin, 8 Ohio St. 297; Kerr v. Reece, 27 Kan. 338. And so as it respects irrelevant or superfluous matter: Warren v. Philips, 30 Barb. 646; Bostwick v. Dry Goods Bank, 67 Barb. 449; Ward v. Ward, 5 Abb. N. S. 145; Campbell v. Taylor, Sup. Ct. Utah, 2 West C. Rep.541. So as to multifariousness in Arkansas: Dyer v. Jacoway, 42 Ark. 186.

2 Moffatt v. McLaughlin, 13 Hun, 449; Barkley v. Mahon, 95 Ind. 101; Vance v. Schroyer, 82 Ind. 114; Lynch v. Levy, 11 Hun, 145; Lorillard v. Clyde, 86 N. Y. 384; Marie v. Garrison, 83 N. Y. 14.

3 Moorman v. Shockney, 95 Ind. 88; City etc. v. Connersville Hydraulic Co. 86 Ind. 235; Pierson v. McCurdy, 61 How. Pr. 134.

4 Cal. Code Civ. Proc. 430, subd. 7. And see O'Connor v. Frasher, 53 Cal. 435; Tibbets v. Riverside etc. Co. 61 Cal. 160; Mendocino Co. v. Morris, 32 Cal. 145; Tomlinson v. Monroe, 41 Cal. 94.

5 Jamison v. King, 50 Cal. 132.

6 Lorenzana v. Camarillo, 45 Cal. 125; Yolo County v. Sacramento, 36 Cal. 193.

7 Slattery v. Hall, 43 Cal. 191.

8 Salmon v. Wilson, 41 Cal. 595.

9 Manning v. Haas, 5 Colo. 37.

V.

10 Simpson v. Prather, 5 Oreg. 86; Turner v. Killian, 12 Neb. 580; Bradley v. Parkhurst, 20 Kan. 462; Union Bank v. Bell, 14 Ohio St. 208; Everett v. Waymire, 30 Ohio St. 308; Williamson Yingling, 93 Ind. 44; Lewis v. Edwards, 44 Ind. 333. A complaint stating facts constituting a cause of action, but also stating facts which constitute a defense, will be considered together as not stating a cause of action, on a demurrer to the complaint: Calvo v. Davies, 8 Hun, 222; 73 N. Y. 211; 29 Am. Rep. 130; Behrley v. Behrley, 93 Ind. 255; Kuehnemundt v. Haar, 14 Jones & S. 188. So, if a pleading is incom1rehensible, because blanks are left where dates should have been