Page images
PDF
EPUB

Hentsch v. Porter.

time the action was commenced. (Mayhew v. Robinson, 10 How. Pr. R., 166.) Any defect apparent upon the face of the complaint, which will defeat the present right to recover, in whole or in part, would be good ground of demurrer. If, for example, a suit were brought upon a promissory note, before due, and the fact was apparent upon the face of the complaint, the defendant could demur, for the reason that the complaint does not state facts sufficient to constitute a cause of action. For such a cause the defendant could demur at common law. (1 Ch. Plea., 453.)

It would seem to be true that, under our system, any objection that may be taken by answer may be taken by demurrer. Whether or not the objection be apparent upon the face of the complaint, the objection itself is still the same. The mode of taking advantage of the error, only, is different in the two cases. It was not so in all cases, under the former system, as some matters had to be specially pleaded, though the defect was apparent upon the face of the declaration; as, for example, usury. (1 Ch. Plea., 484.)

not

While it is true that "the non-presentation was a matter of avoidance, only to be taken advantage of by plea," as decided by this Court, in Ellissen v. Halleck, it is still, in its nature and effect, nothing more than a matter of abatement. It defeats only the present right to recover. After the suit of the claimant has failed in the District Court, because of the non-presentation of the claim, he may afterwards present the same to the administrator, if the time limited by the statute has not expired; and, if rejected, he may then bring his suit, and the former judgment can not be pleaded in bar. If these views be correct, the defendants could have demurred to the complaint, because it did not state facts sufficient to constitute a present cause of action, and the failure to demur did not waive the defect. But, although section forty-five provides that a failure to demur for the first and sixth causes stated in section forty does not waive the objection, it nowhere states any time or mode in which the objection must be afterwards taken.

In the case of Burnham v. De Bevorse and others, (8 How. Pr. Rep., 160,) it was held that the objection might be raised whenever the parties were before the Court, either at special term, or by motion on the trial, or by motion in arrest after verdict. In the case of Higgins v. Rockwell, (2 Duer, 653,) it was held that the objection could be taken at the trial. The same decision was made in the case of Montgomery County Bank v. Albany City Bank, (3 Selden, 464.) In the case of Gould v. Glass, (19 Barbour's S. C. R., 186,) it was held that the defendant was not bound to demur, but that the objection could be taken at any other stage of the case. And in the case of Raynor v. Clark, (3 Code Rep., 231,) the Court said that, for such a

Hentsch v. Porter.

"defect in a complaint, under the Code, the defendant may appeal from the judgment to the general term."

It was a rule, under the former system, that for defects of a substantial nature, as where the declaration did not state facts sufficient to constitute a cause of action, the defendant might move in arrest of judgment, or sustain a writ of error. (1 Ch. Plea., 662; 1 Caines, 104; 3 Code Rep., 231.)

But the objectlon that the claim has not been presented and rejected, wonld not be classed with those substantial defects for which a writ of error would lie at common law. It is matter which defeats the suit for the time being, but does not show that the claimant could not maintain any action, at any time, for the same cause of action. For this defect, under the former system, the defendant would be compelled to demur, or plead in abatement. (1 Ch. Plea., 440, 445.) But, under our system, he is not compelled to demur or plead. Our Code has been so framed that the objection must be classed under the sixth subdivision of section forty.

It does not, however, follow, from this fact, that the defendant could appeal when he fails to make the objection in the Court below. As there are some matters of abatement, which, if apparent upon the face of the complaint, must fall under the sixth clause of demurrer, and are, therefore, not waived by a failure to demur-and as the Code specifies no time and mode in which the objection may be afterwards made-and as, at common law, and from the nature and reason of the case, a writ of error could not be sustained for such a defect in the declaration, it would seem but just and proper to make a distinction between matters going only to the present right to recover, and those that go to the ultimate merits of the action. Where the objection, if true, would only defeat the present right to recover, the defendant, though not compelled to demur or answer, should be obliged to make the objection, by motion or otherwise, before the Court of original jurisdiction, during the term at which the judgment was obtained. But where the defect in the complaint is of such a serious character as to show that the plaintiff could never, at any time, obtain any judgment upon the cause of action alleged, then the defendant should be allowed to make the objection for the first time in the Appellate Court. This view, we think, is consonant with reason and authority.

Under the view we have taken, the defendants should have made their objection in the Court below; and, having failed to do so, the judgment must be affirmed.

FIELD, J.-I concur in the judgment of affirmance, but upon grounds different from those stated in the opinion of Mr. Justice Burnett.

Hentsch v. Porter.

The following opinion was delivered, on re-argument, by BALDWIN, J.-TERRY, C. J., and FIELD, J., concurring.

The appellant contends that the case of Ellissen v. Halleck, (6 Cal., 386,) is decisive of this case. There, however, the objection was taken by demurrer. Here the record shows no answer by the administrator. On the contrary, a stipulation appears in the record, signed by the attorney for the plaintiff, and Nathan Porter, "attorney for the widow," consenting to a decree upon certain terms; and the decree was entered accordingly. We think it clear that the failure to aver this presentment is not such a fatal objection to the complaint as to make judgment by default a nullity, or reviewable on appeal. The administrator, it is true, could only be sued in a given event; but it is, to say the least, very questionable, notwithstanding the ruling in Halleck v. Ellissen, whether this matter be not matter of abatement; at all events, we feel no hesitation in holding, in cases where the administrator does not set up his privilege by demurrer or answer, but suffers judgment to go by default, that this is a confession that he is properly suable. Wherever the subject-matter of the plea or defence is, that the plaintiff can not maintain any action at any time, whether present or future, in respect of the supposed cause of action, it may, and usually must, be pleaded in bar; but matter which merely defeats the present proceeding, and does not show that the plaintiff is forever concluded, should, in general, be pleaded in abatement. (1 Chitty Plead., 446.)

The case of J. L. Hunt v. Porter, administrator, decided at the October Term, 1856, sustains this view. The Court say: "The assignment of error here is not supported by the decision of Ellissen v. Folsom's Executors, at this term. In that case, there was a demurrer to the declaration, and we held the demurrer to be well taken. In this case, the objection to the declaration comes too late. It must be presumed, in favor of sustaining the judgment of the District Court, that proof was made of the disallowance of the claim by the administrator, which supplied the want of the averment to that effect."

Judgment affirmed.

People v. Bond.

THE PEOPLE ex rel. McLANE v. BOND, (ASSESSOR.)

The Act of May 1, 1851, authorizing "The Funding of the Floating Debt of the City of San Francisco," is substantially a trust-deed, whereby she agrees, on a valuable consideration, to place in the hands of certain trustees so much of her revenue and property, to be applied by the trustees to the redemption of her obligations, in the mode and according to the terms of her agreement.

The act being of this character, it was not competent for the Legislature to substantially change its terms, without the sanction of the creditors.

A creditor has a right to the substance of the contract as he has made it. It is his privilege to judge for himself whether it is for his interest for the agreement to be discharged in the particular way stipulated, or in a different mode; and neither the Courts nor the Legislature can change it in any substantial particular.

The city assessor and the city treasurer, by the act of 1851, are put in direct relations with the commissioners, and clear and definite duties are assigned to them, respectively, of a simple ministerial character. No one else is authorized to intervene between them, or to disturb their relations. Neither the old city government, nor the present city and county government-neither the mayor and council, nor the board of supervisors, have any authority to prevent the instant payment of this fund by the treasurer, in pursuance of law, to the commissioners.

There is nothing in the act of 1856-which simply alters the mode of levying taxes, the result not being changed-which, in substance, conflicts with the act of 1851 in those provisions which offered a security to the creditors for their debts. It is just as clear that the law does not contemplate the imposition of double taxation in any one year for the purpose of raising the money provided for by the act of 1851; and, therefore, the terms of the act of 1856, in this respect, supersede those provisions in the act of 1851 which declare the duty of the assessor to add to the list the several sums of money which are intended to be raised by the act of 1851.

APPEAL from the District Court of the Fourth Judicial District, County of San Francisco.

This was a certiorari issued out of the Fourth District Court to review the proceedings of appellant, as assessor for the city and county of San Francisco, in making up the assessment-roll for the current year. The appellant followed the provisions of the fourth section of the Act of 1851, (Statutes of 1851, 388.) entitled "An Act to authorize the Funding of the Floating Debt of the City of San Francisco, and to provide for the Payment of the same." On receiving a requisition from the board of commissioners provided by that act, the assessor added to the assessment-roll of the current year the sum of $145,242, for the payment of interest, and $50,000 for the sinking fund.

The Court below decreed the acts of the assessor, in adding to said tax-list the sum of $145,242, for the payment of the interest on said funded debt, illegal and void, and set the same aside. The defendant appealed to this Court. The other facts, sufficient to understand the points decided, appear in the opinion of the Court.

F. P. Tracy for Appellant.

The only question presented in this case is, whether the act of

People v. Bond.

1856, known as the Consolidation Act, (Statutes of 1856, § 71, p. 145,) repeals so much of the fourth section of the act of 1851, establishing the fund commissioners of San Francisco, (Statutes of 1851, 388,) as provides that the assessor shall, in completing the assessment-list, add to the amount which may be authorized by law to be raised thereon for other purposes, the amount certified by the commissioners, etc.

1. The statute of 1851 is a special statute, the object of which is, the payment of a specific debt, and provision is therein made for such payment. The mode of levying the tax is incidental to that statute, and general taxation is no part of the subject of the

act.

The act of 1856 is general upon the subject of taxation in the city and county of San Francisco.

A subsequent general law will not be construed to repeal a prior special statute, unless the two are irreconcilable. The repeal of statutes, by implication, is not to be favored. Dobbins v. Board of Supervisors of Yuba County, 5 Cal., 414; Merrill v. Gorham, 6 Cal., 41.

2. The act of 1851 prescribes certain acts to be done by the assessor, after the general taxing officers have completed their work. He is to add to the whole amount which may be authorized to be raised by law for other purposes, the sum certified to him by the commissioners.

The act of 1856 only provides that the supervisors shall levy a certain amount of tax for all purposes.

It is submitted that this does not change the duties of the assessor who, under the act of 1851, was not to act until the other taxing officers had exhausted their powers.

How can an act, giving certain powers to and defining the duties of supervisors, repeal, by implication, an act which prescribes a duty to be done by an assessor after the supervisors have completed their action?

3. But it is said that the act of 1856 provides that the deniand of the fund commissioners shall be paid out of the general fund raised by the tax which the supervisors are authorized to levy. Consolidation Act, Statutes of 1856, p. 172, § 95, subdivisions 5 and 10. And, therefore, a new provision being made for the payment of this act, the old fails, especially as the supervisors, (section seventy-one of that act,) are authorized to raise, by tax there limited, a sum sufficient to provide for the prompt payment of all demands upon the treasury authorized by that act. The answer to this is, that, by the act of 1851, the demand of the fund commissioners is made payable, not out of the special tax added by the assessor, (§ 4,) but out of the general fund, and the first moneys in such fund received from all taxes. And, in 1851, the common council of San Francisco were only authorized, beside special school tax, etc., "to levy and collect-of city

« PreviousContinue »