causes of action may be united when they belong to the same class or species of injuries or wrongs, or when they arise out of the same transaction. But admitting that the action is brought in the right court, that the parties plaintiff have the right to sue, and that it is brought by the proper parties, and that no other action is pending between these parties, still the sixth ground of demurrer under the statute, and the one most often interposed, is, "that the complaint does not state facts sufficient to constitute a cause of action." Thus where the complaint shows upon its face, in an action on account, that it accrued more than four years before the commencement of the suit, or, in an action of ejectment, a seisin and ouster are alleged to have occurred more than five years before the commencement of the action, in each case the complaint would fail to state a cause of action because of the bar of the statute of limitations. The instances where a plaintiff would fail to state facts sufficient to constitute a cause of action are so numerous that examples seem unnecessary. The following inquiries, however, may be a guide to the practitioner on the subject: 1. Does the complaint show that the plaintiff has suffered an injury? 2. Is it an injury which the law recognizes as a wrong, and for which it provides a remedy? 3. Is the defendant liable for the alleged wrong done? 4. If the defendant is liable, to what extent is he liable, and what will be the legal remedy for such injury?

These questions will, in general, test the validity of the pleading. Any person may know that an answer must be made to a complaint, but it frequently requires the most careful and critical thought to tell when it may be successfully demurred to. The answer puts in issue the facts, while the demurrer puts in issue the law. The one denies the allegations of the complaint; the other admits but avoids them by affirming that no wrong was done the plaintiff by the defendant. By wrong is meant no wrong for which the law affords a remedy.

The seventh, eighth, and ninth grounds of demurrer prescribed by our statute go more to the manner than the matter of the complaint, namely, that the complaint is ambiguous, unintelligible, or uncertain. For instance, a complainant might have a perfect cause of action, and might also state facts in his pleading "sufficient to constitute a cause of action," but he may so intermingle them with extraneous matter that the complaint would be meaningless; in other words, "the allegations of the complaint

should be so clear and pointed that defendant may know what he is charged with, and what he must admit or deny." defendant, under the code practice, is not obliged to look through pages of meaningless sentences to ascertain the idea of the pleader.10

§ 239. Effect of a demurrer.-An order sustaining a demurrer to a complaint is not a judgment, and does not have the effect of finally dismissing the defendant from the action." The overruling of a demurrer to a defense set up in the answer does not authorize the granting of a nonsuit, in absence of proof of the facts alleged in the answer, or an admission by plaintiff to sustain such allegations.12

The omission of the defendant to join in a demurrer to a plea is a waiver of that plea." If demurrers are suffered to rest for three years, the court may then overrule them in its discretion, for want of prosecution.11

17

A statement of facts in a demurrer is not admissible. The only office of a demurrer is to raise issues of law upon the facts stated in the pleading demurred to.15 If it requires the slightest statement of facts to make the defect in the complaint apparent, demurrer will not lie.16 The test of a demurrer is: Does it require any facts to sustain it? If no objection be taken, either by demurrer or answer, the defendant must be deemed to have waived the same, excepting only the objection to the jurisdiction of the court and the objection that the complaint does not state facts sufficient to constitute a cause of action.18 The objection that the complaint does not state facts sufficient to constitute a cause of action is never waived.19 A demurrer abandoned after

10 Estee's Pl. & Pr., § 3068. 11 De La Beckwith v. Superior Court, 146 Cal. 496, 80 Pac. 717.

12 Green v. Duvergey, 146 Cal. 379, 80 Pac. 234.

13 Morsell v. Hall, 13 How. 212, 14 L. Ed. 117.

14 Anderson v. Fisk, 36 Cal. 625. 15 Brennan v. Ford, 46 Cal. 7; Brooks v. Gibbons, 4 Paige, 374.

16 Davy v. Betts, 23 How. Pr. 396; Lillaye v. Wilson, 43 Barb. 261.

17 Struver v. Ocean Ins. Co., 16 How. Pr. 422.

18 Cal. Code Civ. Proc., § 434; Alaska Codes, pt. 4, ch. 7, § 58; Ariz. Civ. Code, § 1357; Idaho Rev. Codes, §§ 4174-4178; Mont. Rev. Codes, §§ 6554-6559; Nev. Comp. Laws, § 3135; N. Mex. Comp. Laws, § 2685, subd. 35; Or. B. & C. Codes, § 68; Wash. Bal. Codes, §§ 2907-2911; Utah Rev. Stats., § 2962; Wyo. Rev. Stats., § 3535. As to waiver of objection to the complaint on special grounds by the omission to demur, see Malone v. Stilwell, 15 Abb. Pr. 421.

19 Parker v. Bond, 5 Mont. 1, 1 Pac. 209.

service of an amended pleading is no longer a part of the record, and will be struck out of the appeal-book on motion.20 In a case brought upon a writ of error, which presented the appearance of a demurrer upon the record which had not been disposed of, where there was a verdict upon a plea of the general issue, and a judgment rendered thereon, the supreme court presumed that the demurrer had been either withdrawn or overruled.21 Notwithstanding a defendant in chancery demurs, and the demurrer is overruled, he may afterwards insist upon the same thing by his answer. And under the civil law the party who demurred is not prevented from contesting the facts confessed in the demurrer, and compelling the opposite party to prove them.22 This is the modern practice.

§ 240. What a demurrer admits.-A demurrer admits the matter of fact, since it refers the law arising upon the fact to the judgment of the court; and therefore the fact is taken to be true on such demurrer, or otherwise the court has no foundation on which to make any judgment.23 But only such facts as are issuable and well pleaded are admitted. Allegations which are unnecessary, and are contrary to facts of which the court will take judicial notice, are a nullity, and are not admitted by demurrer.25 Matters which the court is debarred from considering are not well pleaded.20 A demurrer does not admit the truth of an allegation. of a conclusion of law.27 It was undoubtedly the rule at common law that a demurrer admitted only facts well or formally pleaded, but by statute a general demurrer confesses all matters pleaded, though informally.28 But a special demurrer admits only facts well pleaded.29 Irrelevant facts are not admitted.30 Where the pleading demurred to contains two contradictory averments, one

20 Brown v. Saratoga R. R. Co., 18

N. Y. 495.

21 Townsend v. Jennison, 7 How. 706, 12 L. Ed. 880.

22 See Crawford v. The William Penn, 3 Wash. C. C. 484, Fed. Cas. No. 3373.

23 Tomlin's Law Dict.; Clark v. Wall, 32 Mont. 219, 79 Pac. 1052; Raiche v. Morrison, 37 Mont. 244, 95 Pac. 1061.

24 Branham v. Mayor etc. of San Jose, 24 Cal. 602.

25 French v. State Senate, 146 Cal. 604, 80 Pac. 1031.

26 Gillette v. Peabody, 19 Colo. App. 356, 75 Pac. 18.

27 First Nat. Bank v. Lewinson, 12 N. Mex. 147, 76 Pac. 288; Hester v. Thompson, 35 Wash. 119, 76 Pac. 734; Gill v. Manhattan Life Ins. Co. (Ariz.), 95 Pac. 89.

28 See Steph. Pl. 159, 160.

29 Id.; People v. Goddard, 8 Colo. 432, 7 Pac. 301; Supply Ditch Co. v. Elliott, 10 Colo. 327, 3 Am. St. Rep. 586, 15 Pac. 691; Adams v. Couch, 1 Okla. 17, 26 Pac. 1009.

30 Hall v. Bartlett, 9 Barb. 297.

31

of which the law adjudges to be a fiction, the demurrer only admits the averment which the law adjudges to be true.3 It admits the allegations of the bill for the purposes of a motion on the bill.32 Where the court intimates that, conceding the facts to be true, yet the plaintiff could not recover, and the defendant admits the facts could be proved, this is deciding the case as on demurrer, or as on motion for nonsuit.83 But an admission of facts by a demurrer in one cause is not evidence of those facts in another cause, although between the same parties.34 So a demurrer does not admit the truth of any new facts not appearing in the original pleading.35 And it never admits the law arising on those facts. A demurrer admits the truth of all allegations which are well pleaded, however improbable the facts alleged may be. When, however, allegations in a pleading are admitted for the purpose of a demurrer, they are admitted for that purpose only, and should not be commented on by the court as if they were de facto true.38

37

241. Amendment of demurrer.-The statutes relating to amendment of pleadings is sufficient to authorize the court, on proper showing, to permit withdrawal of an amended crosscomplaint and the filing of an amended demurrer to the complaint.39

§ 242. When a demurrer lies.-A demurrer lies only when an entire pleading-that is, an entire cause of action-is insufficient,40

31 Freeman v. Frank, 10 Abb. Pr. 370. See, generally, Commonwealth etc. v. Allegheny County Commrs., 37 Pa. St. 277; Bennion v. Davidson, 1 Horn & Hurl. 48; Cutler v. Wright, 22 N. Y. 472; Greathouse v. Dunlap, 3 McLean, 303, Fed. Cas. No. 5742; Commercial Bank of Manchester v. Buckner, 20 How. 108, 15 L. Ed. 862; Van Doren v. Tjader, 1 Nev. 380, 90 Am. Dec. 498; Griffing v. Gibb, 2 Black, 519, 17 L. Ed. 353; Foote v. Linck, 5 McLean, 616, Fed. Cas. No. 4913.

32 Bayerque v. Cohen, 1 McAll. 113, Fed. Cas. No. 1134.

33 Snodgrass v. Ricketts, 13 Cal. 359.

34 Auld v. Hepburn, 1 Cranch C. C. 122, 166, Fed. Cas. Nos. 650, 651.

35 Van Doren v. Tjader, 1 Nev. 380, 90 Am. Dec. 498.

36 United States v. Arnold, 1 Gall. 348, Fed. Cas. No. 14469; Hobson v. McArthur, 3 McLean, 241, Fed. Cas. No. 6554; Griggs v. City of St. Paul, 9 Minn. 246.

37 Woodroof v. Howes, 88 Cal. 184, 26 Pac. 111. And see Freeman v. Hart, 61 Iowa, 525, 16 N. W. 597; Peterson v. Roach, 32 Ohio St. 374, 30 Am. Rep. 607.

38 Day v. Brownrigg, 10 Ch. Div. 294; Rice v. Rice, 13 Or. 337, 10 Pac. 495; Shafford v. Brown, 49 Wash. 307, 95 Pac. 270.

89 Murphy v. Russell, 8 Idaho, 133, 67 Pac. 421; Perrin v. Mallory Com mission Co., 8 Ariz. 404, 76 Pac. 476. 40 1 Van Santv. 184.

as a part of a cause of action cannot be demurred to."1 So if any part of a bill demurred to is good, demurrer to the whole cannot be sustained.42 If the complaint contains one good cause of action, a general demurrer to the whole complaint will not lie. A demurrer must be directed to the whole of a pleading, or to a particular and separate statement of a cause of action or defense. It cannot be directed to certain lines thereof. On a general demurrer (unless for misjoinder of actions) judgment must be given for the plaintiff, if there is one good count in the declaration.*5 A general demurrer to a whole complaint which contains two counts or two causes of action is properly sustained where neither of the counts states a cause of action, and it is not necessary that the demurrer in such case should refer to either of the counts separately. But where a complaint contains several counts, a general demurrer thereto on

42 Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396; Elgin Jewelry Co. v. Wilson, 42 Colo. 270, 93 Pac. 1107; Kuypers etc. v. Ministers etc. Reformed Dutch Church, 6 Paige, 570; Story's Eq. Pl., § 443; Whiting v. Heslep, 4 Cal. 327; Weaver v. Conger, 10 Cal. 233; Martin v. Mattison, 8 Abb. Pr. 3; Atwill v. Ferrett, 2 Blatchf. 39, Fed. Cas. No. 640; Marshall v. Bouldin, 8 Mo. 244; Butler v. Wood, 10 How. Pr. 222; Cooper v. Clason, 1 Code Rep. (N. S.) 347; Souza v. Belcher, 3 Edw. Ch. 117; Livingston v. Story, 9 Pet. 632, 9 L. Ed. 255; Livingston v. Livingston, 4 Johns. Ch. 294; Higinbotham v. Burnett, 5 Johns. Ch. 184; Parsons v. Bowne, 7 Paige, 354; Griggs v. Thompson, 1 Ga. Dec. 146; Hollsclaw v. Johnson, 2 Ga. Dec. 146; Jaques v. Morris, 2 E. D. Smith, 639; Fancher v. Ingraham, 6 Blackf.

139.

43 Griffiths v. Henderson, 49 Cal. 566; Fleming v. Albeck, 67 Cal. 226 7 Pac. 659; McCann v. Pennie, 100 Cal. 547, 35 Pac. 158; E. Malley Co. v. Londoner, 41 Colo. 436, 93 Pac.

46

488; McCartney v. Glassford, 1 Wash. 579, 20 Pac. 423; Pinkum v. City of Eau Claire, 81 Wis. 301, 51 N. W. 550; Victory Webb Printing Co. v. Beecher, 26 Hun, 48, 97 N. Y. 651.

44 Locke v. Peters, 65 Cal. 161, 3 Pac. 657; Herefort v. Cramer, 7 Colo. 483, 4 Pac. 896; Reed v. Drais, 67 Cal. 491, 8 Pac. 20.

45 1 Bos. & Pul. (N. R.) 43; Stoddard v. Treadwell, 26 Cal. 294; Snipsic Co. v. Smith, 7 Cal. App. 150, 93 Pac. 1035; Whitney v. Crosby, 3 Caines, 89; Gidney v. Blake, 11 Johns. 54; Martin v. Williams, 13 Johns. 264; Monell v. Colden, 13 Johns. 395, 7 Am. Dec. 390; Mumford v. Fitzhugh, 18 Johns. 457; People v. Bartow, 6 Cow. 290; Freeland v. McCullough, 1 Denio, 414, 43 Am. Dec. 685; Wolfe v. Luyster, 1 Hall, 146 (161); Ward v. Sackrider, 3 Caines 263; French v. Tunstall, Hempst. 204, Fed. Cas. No. 5104a.; McCue v. Corporation of Wash., 3 Cranch C. C. 639, Fed. Cas. No. 8735; Brown v. Duchesne, 2 Curtis, 97, Fed. Cas. No. 2003; Vermont v. Society for Prop. of Gospel, 2 Paine, 545, Fed. Cas. No. 16920; Clark v. Smith, 66 Cal. 645, 4 Pac. 689.

46 Churchill v. Pac. Imp. Co., 96 Cal. 490, 31 Pac. 560.