is a court of record having a seal, and that C. D., Esq., whose name is subscribed to the jurat of the foregoing affidavit, was at the date of said jurat a notary public in and for said state [or other official, giving his proper title] duly appointed, qualified, and acting and was by the laws of said state duly authorized to take said affidavit and to administer oaths; that I am well acquainted with the handwriting of the said C. D. and verily believe his signature attached to said jurat to be genuine. Witness my hand and the seal of said court, at the city of.. in said county and state, this

[SEAL OF COURT.]

day of
A. B.,

19..

§ 183. Jurat taken before commissioner without the state.

Form No. 64.

The above affidavit was subscribed and sworn to before me the undersigned, a commissioner for the state of . . ., residing at

[Add authentication of secretary of state if required. It is not generally necessary.]

CHAPTER XIII.

THE COMPLAINT.

§ 184. Form and requisites in general-What it is.-Under the code system of procedure the complaint is the first pleading in the action, and upon it all subsequent proceedings are based. It is a substitute for the declaration at common law and for the bill in equity, and is the initial paper containing the allegations showing the plaintiff's cause of action whether at law or in equity. The allegations of the complaint must determine the character and object of the action.1

In all of the code states, the contents of the complaint are prescribed by statute, substantially as follows: 1. The title of the action, the name of the county in which the action is brought, and the names of the parties to the action; 2. A statement of the facts constituting the cause of action in ordinary. and concise language; 3. A demand for the relief which the plaintiff claims. If the recovery of money or damages be demanded, the amount thereof must be stated.2

§ 185. Parties.-In another portion of this work will be found a general treatment of the code requirements as to title, venue, and names of parties. It is only the provision with reference to parties that requires any further consideration in connection with the complaint.

We have already determined what constitutes the name of a party who sues as an individual, or rather in his individual capacity, and under this head we will consider the allegations as to the character in which a person sues and his capacity to sue.

*For complaints and forms thereof in particular classes of actions, in actions by or against particular classes of persons, and in actions relating to particular rights, see Vols. III and IV.

1 Marshall Silver Min. Co. v. Kirtley, 12 Colo. 410, 21 Pac. 492; Hunt v. Eureka etc. Mining Co., 14 Colo.

451, 24 Pac. 550; Buena Vista etc. Co. v. Tuohy, 107 Cal. 243, 40 Pac. 386; Board School Commrs. v. Center Township, 143 Ind. 391, 42 N. E. 808.

2 Cal. Code Civ. Proc., § 426.

See chapter XI, ante, entitled "Formal Parts of Pleadings."

Where a plaintiff sues in an official or representative character or capacity, the complaint itself must contain allegations of such character or capacity in addition to the inferential statement in the title. While it is customary and proper, in stating the title in the complaint in such cases, to add to the name of the party his official designation, e. g. "A. B., Executor," "C. D., Sheriff," yet this will not dispense with the necessity for the formal averment of capacity. Such a designation standing alone in the title would be a mere descriptio persona.

No formal mode of allegation is essential; it is only necessary that the plaintiff's right to maintain the action be substantially shown so that issue may be joined thereon." A very short averment, if clear in its terms, is sufficient,' though a special authority must be averred with sufficient fullness to make it clearly apparent. An officer suing as such need not state in his complaint how he acquired his office; it is enough to show that he is such officer in fact. And an averment that a certain person acted as under-sheriff in a suit against him as such, without alleging that he acted so wrongfully, implies that he was under-sheriff de jure as well as de facto.

The character of agent of a company suing as such must be averred.10 So, also, the character of assignee must be averred when the plaintiff sues in that capacity." The form of the assignment, or the consideration therefor, need not be alleged.12 But a positive transfer, and the character of it, must be averred.13

4 Gould v. Glass, 18 Barb. 185; Smith v. Levinus, 8 N. Y. 472.

5 Merritt v. Seaman, 6 N. Y. 168; Hallett v. Harrower, 33 Barb. 537; Barfield v. Price, 40 Cal. 535.

6 Halleck v. Mixer, 16 Cal. 574; Barfield v. Price, 40 Cal. 535.

7 Smith v. Levinus, 8 N. Y. 472; Root v. Price, 22 How. Pr., 372; Hallett v. Harrower, 33 Barb. 537.

8 Kelly v. Brensing, 33 Barb. 123.

• People v. Otto, 77 Cal. 45, 18 Pac. 869.

10 Tolmie v. Dean, 1 Wash. T. 46. 11 Murdock v. Brooks, 38 Cal. 596; King v. Felton, 63 Cal. 66.

12 Fowler v. New York Indem. Ins. Co., 23 Barb. 151; Morange v. Mudge, 6 Abb. Pr. 243.

13 Stearns v. Martin, 4 Cal. 227; Patent Brick Co. v. Moore, 75 Cal. 205, 16 Pac. 890.

CHAPTER XIV.

COMPLAINT-STATEMENT OF CAUSE OF ACTION.

§ 186. In General. Every complaint in an action must be founded upon a theory under which the plaintiff is entitled to recover, and must state all the facts essential to support such theory; failing to do so, it is radically defective, and does not state facts sufficient to constitute a cause of action. It should state expressly, and in direct terms, the facts constituting the cause of action, and leave no essential fact in doubt or to be inferred or deduced by argument from the other facts stated, as inference, argument, or hypothesis cannot be tolerated in pleading. The plaintiff must state his cause of action with sufficient particularity to inform the defendant of its real character,3 and he must recover, if at all, upon the cause of action set out in his complaint.*

A cause of action being the right a person has to institute and carry through a proceeding," and the object of the complaint being to present the facts upon which the action is founded in ordinary and concise language, the manner in which those facts are stated becomes a matter of importance, not only with reference to those facts which should be alleged, but with reference to those facts which need not be alleged and which should be omitted from the complaint.

This does not mean, however, that a complaint will be held bad because the facts stated do not entitle the plaintiff to all the relief demanded. The demand in the complaint is no part of the statement of the cause of action, and does not give it character. The facts alleged do this, and the plaintiff is entitled to as much relief as they warrant.

1 Buena Vista etc. Co. v. Tuohy, 107 Cal. 243, 40 Pac. 386.

2 Joseph v. Holt, 37 Cal. 250; Green v. Palmer, 15 Cal. 411, 76 Am. Dec.

492.

3 Puget Sound Iron Co. v. Worthington, 2 Wash. T. 472, 7 Pac. 882, 886.

Burke v. Levy, 68 Cal. 32, 8 Pac. 527; Gregory v. Cleveland Railroad

So, also, where there is one

Co., 112 Ind. 385, 14 N. E. 228; Frary v. Dakin, 7 Johns. 75.

5 Meyer v. Van Collem, 28 Barb. 231.

• Cal. Code Civ. Proc., § 426.

7 Patoka Township v. Hopkins, 131 Ind. 142, 31 Am. St. Rep. 417.

8 Strain v. Babb, 30 S. C. 342, 14 Am. St. Rep. 905, 9 S. E. 271.

good count in a complaint, the plaintiff is entitled to relief on that count, notwithstanding another alleged cause of action may not be properly stated. And in the absence of a special demurrer for ambiguity or uncertainty, a complaint showing the liability of the defendant will be sustained although the facts are imperfectly stated, or not stated with the clearness or precision which good pleading requires.10

§ 187. Accrual of right and allegation thereof.-Needless to say, the cause of action stated in the complaint must be one existing at the time the action is commenced. The complaint refers to conditions existing at the time it is filed, and the rights of the parties are to be determined as they existed at that time. Thus an allegation that the plaintiff is entitled to a certain right means that he was entitled to it at the time the pleading was filed. And it has been held that allegations in the present tense relate to the date of verification. 12 The rule, however, that a status or condition which is shown to have existed in the past is presumed to continue is a rule of evidence, not of pleading.13

14

§ 188. Facts to be stated. Those facts, and those only, should be stated which constitute the cause of action, and the kind of relief should be explicitly demanded. By this is meant material facts only." 15 And such facts should be stated in an intelligible and issuable form, capable of trial.16 omitted, evidence upon them cannot be allowed; stipulations nor admissions can aid the pleading.18

Terrill v. Terrill, 109 Cal. 413, 42 Pac. 137.

10 Ryan v. Jacques, 103 Cal. 280, 37 Pac. 186; Marix v. Stevens, 10 Colo. 261, 15 Pac. 350; Mariott v. Clise, 12 Colo. 561, 21 Pac. 909.

11 McCormick v. Blossom, 40 Iowa, 256; Townshend v. Norris, 7 Hun, 239; Brown v. Galena Min. etc. Co., 32 Kan. 528, 4 Pac. 1013.

12 Prindle v. Caruthers, 15 N. Y. 425.

13 Pryce v. Jordan, 69 Cal. 569, 11 Pac. 185.

14 Green v. Palmer, 15 Cal. 413, 76 Am. Dec. 492; Willson v. Cleaveland, 30 Cal. 192; Racouillat v. Rene, 32

If they are

and neither

If, however,

Cal. 455; Spring Valley v. San Francisco, 82 Cal. 321, 16 Am. St. Rep. 116, 22 Pac. 910, 1046, 6 L. R. A. 756; United States v. Williams, 6 Mont. 385, 12 Pac. 85; Cline v. Cline, 3 Or. 359; Meyer v. School District, 4 S. Dak. 425, 57 N. W. 68.

15 Hentsch v. Porter, 10 Cal. 555; Hicks v. Murray, 43 Cal. 522; Ortega v. Cordero, 88 Cal. 226, 26 Pac. 80; Tucker v. Parks, 7 Colo. 68, 298, 1 Pac. 427, 3 Pac. 486.

16 Los Angeles v. Signoret, 50 Cal. 298; Boyce v. Brown, 7 Barb. 81.

17 Hicks v. Murray, 43 Cal. 522. 18 Tucker v. Parks, 7 Colo. 68, 298, 1 Pac. 427, 3 Pac. 486.