inserted, it is demurrable: Knightstown Bank v. Deitch, 83 Ind. 131; but it is not demurrable because of an error clearly clerical, by which parties have not been misled: Roussel v. St. Nicholas Ins. Co. 9 Jones & S. 279; 52 How. Pr. 495; Fay v. McKeever, 59 Cal. 307; Fickett v. Brice, 22 How. Pr. 194.

11 Lorillard v. Clyde, 86 N. Y. 384; Marie v. Garrison, 83 N. Y. 14; Bushey v. Reynolds, 31 Ark. 662.

255. Demurrer bad in part. - A demurrer must be sustained or fail to the whole extent to which it is applied, and cannot be treated as bad in part and in part good. Thus, it is well settled, that if a complaint or petition contains several distinct causes of action, a demurrer to the whole pleading cannot be sustained if either of the causes of action is good and well pleaded.2 The pleader must stand upon his general proposition, and the court must pass upon it as an entirety, and cannot overrule the demurrer as to one paragraph and sustain it as to another.3 So, if a complaint against two or more defendants states facts constituting a good cause of action against any one of them, a joint demurrer by all, for want of sufficient facts, should be overruled.* So, if a demurrer is interposed to a complaint containing two causes of action, of a nature that admits of their being united, but of one of which the court has no jurisdiction, it will be overruled if it is to the whole complaint, and assigns no cause of demurrer except that several causes of action are improperly united.3 In such case, the demurrer should be limited to the cause of action of which the court has no jurisdiction." It is irregular to file two demurrers to the same pleading without leave of court; but where two demurrers were filed to a complaint, one for its failure to state facts sufficient to constitute a cause of action, and the other for its misjoinder of causes of action, and no objection was taken, it was held that they should be treated as one demurrer on two grounds.8 A demurrer must reach the whole of a cause of action, and a

paragraph cannot be expunged on demurrer unless it amounts to a separate cause of action, and is so stated.9 It is said that "a demurrer is not a pruning hook, with which to rid a pleading of foreign or improper matter, nor is it a sword with which to attack and cut off redundant or impertinent averments in a pleading." 10 If a count in a complaint or petition sufficiently states a cause of action, it is not vulnerable to a demurrer, although it may also contain much matter that is redundant, impertinent, or scandalous.11

1 Peabody v. Insurance Co. 20 Barb. 339; People v. Morrill, 26 Cal. 360. If a portion of a complaint is defective, such defect must be reached by a special demurrer, and not by a general demurrer to the whole complaint: Lafleur v. Douglass, 2 Wash. T. 185.

2 Hyde v. Supervisors etc. 43 Wis. 129; Potter v. Hussey, 1 Utah, 249; Wheeler v. Life Ins. Co. 82 N. Y. 543; Butler v. Wood, 10 How. Pr. 222; Seaver v. Hodgkin, 63 How. Pr. 128; Warner v. Capps, 37 Ark. 32; Bruce v. Benedict, 31 Ark. 301; Weaver v. Conger, 10 Cal. 233; Carson v. Cock, 50 Tex. 325.

3 Archer v. Nat. Ins. Co. 2 Bush, 226. And see State v. Shields, 56 Ind. 521.

4 Dunn v. Gibson, 9 Neb. 513; Hale v. Omaha Nat. Bank, 49 N. Y. 627; Wilkerson v. Rust, 57 Ind. 172; Powers v. Bumbratz, 12 Ohio St. 273; Goncelier v. Forst, 4 Minn. 13; Craig v Donovan, 63 Ind. 513; Carter v. Zenblin, 68 Ind. 436.

5 Cook v. Chase, 3 Duer, 643.

6 Cook ". Chase, 3 Duer, 643.
7 Hackett v. Carter, 38 Wis. 394.

8 Hackett v. Carter, 38 Wis. 394.

9 Ransom v. McClees, 64 N. C. 17; Bougher . Scobey, 16 Ind. 151; Mattoon v. Baker, 24 How. Pr. 329; Daniels r. Bradley, 4 Minn. 158; Beals r. Beals, 27 Ind. 77; Locke v. Peters, Sup. Ct. Cal. 3 Pacif. L. Rep. 657.

10 Cole, J., in Hayden v. Anderson, 17 Iowa, 158.

11 Hayden v. Anderson, 17 Iowa, 158; Judah v. Vincennes Univ. 23 Ind. 273; Ward v. Ward, 5 Abb. Pr. N. S. 145; King . Enterprise Ins. Co. 45 Ind. 43.

56. When demurrer adjudged frivolous. — A demurrer is frivolous when the court can say, upon a bare inspection of the pleading, without argument, that it is manifestly bad. The demurrer must be not merely without adequate reason, but so clearly and plainly without foundation that the defect appears upon mere inspection,

2

and indicates that it was interposed in bad faith; if any argument is required to show that the demurrer is bad, it is not frivolous. A demurrer will be held frivolous where there is a decision in point, sustaining the pleading to which the demurrer is interposed. Thus, a complaint being held by reported cases to be sufficient, a demurrer to it, on the ground that it does not state facts sufficient to constitute a cause of action, must be treated as frivolous, although it might not be frivolous if the question were res nova. So, if a complaint is framed in accordance with a form expressly authorized in special cases, a demurrer thereto will be held frivolous."

1 Ferguson v. Troop, 16 Wis. 571.

2 Cook v. Warren, 83 N. Y. 37.

3 Cook v. Warren, 83 N. Y. $7. 497.

And see Strong v. Sproul, 53 N. Y.

4 Bank of Wilmington v. Barnes, 4 Abb. Pr. 226; Swinburne v. Stockwell, is How. Pr. 3.2.

5 Phelps v. Ferguson, 19 How. Pr. 183; 9 Abb. Pr. 206. Chauncey v. Lawrence, 15 Abb. Pr. 106.

6 Greenburg v. Wilkins, 9 Abb. Pr. 206, 11.

And see

257. Amendments after decision of demurrer. — When judgment is given on a demurrer, in favor of the defendant, the demurrer is said to be allowed. And upon the allowance of a demurrer, it is competent for the plaintiff to amend, and to remove the objection, if he may be able to do so." But leave to amend need not be granted unless asked for ;3 and it lies absolutely in the discretion of the court, to be exercised in the furtherance of justice, whether or not to permit the party to amend. And it is held not to be in furtherance of justice to allow an amendment, with no other view than that the plaintiff might have the privilege of looking about to see if he could not discover some means of re-enforcing his case.5 If, therefore, it appears to the court that the complaint cannot be so amended as to enable the plaintiff to recover, the defendant is entitled to judgment absolute,

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upon the demurrer. And after an amended complaint has been held insufficient on demurrer, leave to amend a second time should not ordinarily be granted.' And where the court below sustains a demurrer to a complaint, and the plaintiff afterwards files a new and amended complaint, he thereby waives any error that may have been committed in sustaining the demurrer to the first pleading. The filing of a new complaint after a demurrer sustained is not the commencement of a new action;9 the amended complaint takes the place of the original, and when it is filed the original ceases to perform any further functions as a pleading.10 Upon the demurrer being overruled, it lies in the discretion of the court to permit the defendant to plead anew or amend," but such permission will not be given, unless it satisfactorily appears to the court that the demurrer was interposed in good faith, with a view of disposing of the case upon the merits, and not in the mere hope of success.12 Where a demurrer to a complaint is overruled, with leave to answer within a certain time, the judgment entered upon failure to answer is final, and leave to answer cannot be afterwards given.13

1 2 Wait's Pr. 455.

2 Meyer v. County of Dubuque, 43 Iowa, 592; Gallagher v. Delaney, 10 Cal. 410.

3 Devoss v. Gray, 22 Ohio St. 159. And see Yreka Wat. Co. 14 Cal. 201.

4 Lowry v. Inman, 37 How. Pr. 286; 6 Abb. Pr. N. S. 394; 2 Sweeny, 117; Bonnifield v. Price, 1 Wyom. 172. See N. Y. Code Civ. Proc. 2497; Robinson v. Judd, 9 How. Pr. 378. As to the entry of an interlocutory judgment on sustaining demurrer, see Liegeois v. McCrackan, 22 Hun, 69.

5 Lowry v. Inman, 37 How. Pr. 286; 6 Abb. Pr. N. S. 394; 2 Sweeny, 117.

6 Snow v. Fourth Nat. Bank, 7 Robt. 479; Lord v. Hopkins, 30 Cal. 76.

7 Lowry v. Inman, 37 How. Pr. 286; 6 Abb. P. N. S. 394. And see Gallagher v. Delaney, 10 Cal. 410.

8 Rosa v. Mo. etc. R. R. Co. 18 Kan. 124. And see? 46, ante.

9 Jones v. Frost, 28 Cal. 245.

10 Barber v. Reynolds, 33 Cal. 497. And see Sands v. Calkins, 30 How. Pr. 1.

11 Bonnifield v. Price, 1 Wyom. 172.

12 Osgood v. Whittelsey, 10 Abb. Pr. 134; 20 How. Pr. 72. See ? 46, ante.

13 Fisher v. Gould, 9 Daly, 144. And see Whiting v. Mayor etc. 37 N. Y. 600. The defendant may serve an answer at any time within twenty days after the service of a demurrer to the complaint, as a matter of course, to take the place of the demurrer, and as an amended pleading: People v. Whitewell, 4 N. Y. Month. Law Bull. 21. See Brown v. Leigh, 49 N. Y. 78.