96 relief. A demurrer to a complaint on the ground that it seeks a remedy at law, and also seeks for equitable relief, is bad." A demurrer to a bill in equity alleging that the relief can be had at law will not lie where the bill charges. fraud, and prays relief against a judgment at law and a sale under it.98 § 247. General demurrer.-In Pennsylvania it has been held that a general demurrer is only for defects of substance; a special demurrer for defects of form, which must be specially assigned." Where defendant filed a general demurrer to the complaint for want of facts, he is not entitled to raise thereunder the question of plaintiff's legal capacity to sue, that being a special ground of demurrer. 100 A general demurrer, assigning reasons why the plaintiff should not recover, must be considered and treated as a special demurrer. 101 Section 431 of the California Code of Civil Procedure provides that the demurrer must distinctly specify the grounds upon which any of the objections to the complaint are taken, and unless it does so it may be disregarded; but this provision, as we shall hereafter see, does not in fact change the force and effect of a general demurrer, or the mode of framing it, since, under section 434, it is provided that a failure to demur to the jurisdiction, or upon the ground that the complaint does not state facts sufficient to constitute a cause of action, does not waive either objection. This must be so, independently of this provision, since, if the court has not jurisdiction, it cannot render a valid judgment, nor could a judgment be sustained upon the record if it did not disclose facts to sustain the judgment.102 On demurrer, the court should not pay any attention to forms, if it can find in the complaint any allegations which, under any view of them, may give the plaintiff a right to recover.1 The same distinction between insufficient facts and an insufficient statement of facts, which prevails when 103 96 Walton v. Walton, 32 Barb. 203, 20 How. Pr. 347. 97 Gates v. Kieff, 7 Cal. 125; Rollins v. Forbes, 10 Cal. 300. 98 Shelton v. Tiffin, 6 How. 163, 12 L. Ed. 387. 99 Commonwealth v. Cross Cut R. R. Co., 53 Pa. St. 62. 100 James v. James, 35 Wash. 655, 77 Pac. 1082. 101 Tyler v. Hand, 7 How. 573, 12 L. Ed. 824. P. P. F. Vol. I-12 102 Alaska Codes, pt. 4, ch. 7, § 58; Ariz. Civ. Code, par. 1351; Idaho Rev. Codes, 4194; Mont. Rev. Codes, § 6555; Nev. Comp. Laws, § 3135; N. Mex. Comp. Laws, § 2685, subd. 35; Or. B. & C. Codes, § 68; Utah Rev. Stats., § 2962; Wash. Bal. Codes, §§ 2907, 2911; Wyo. Rev. Stats., § 3535. 103 Wilder v. McCormick, 2 Blatchf. 31, Fed. Cas. No. 17650; Butterworth v. O'Brien, 39 Barb. 192, 24 How. Pr. 438. it is considered whether the complaint supports the judgment, should prevail upon general demurrer. 104 Or, if the complaint contains the elements of a cause of action, however inartificially it may be stated; and if, on analyzing the facts disclosed, the whole or any part of them can be resolved into a cause of action, the demurrer should be overruled.105 If the declaration does not set forth a proper case, and in a correct form, the defendant may avail himself of these defects on demurrer; but the want of proper averments in the declaration cannot be made the ground of a nonsuit.106 For defects in mere matters of form in a pleading the adverse party should interpose a special demurrer. A general demurrer will not in general reach them.107 But these questions are regulated by the decisions of the courts in the several states and the statutes in force. A general demurrer to a plea of fraud in obtaining the judgment in suit is insufficient where the objection intended to be raised is that the plea does not state the particulars of the fraud relied upon; this being matter of form.108 In California, it is held that an averment in a complaint that the defendant unlawfully took personal property is a mere averment of law, and an averment that he fraudulently took it, without stating the facts which constitute the fraud, is not a statement of an issuable fact.109 § 248. Special demurrer.-The phrase "special demurrer" doubtless means a demurrer which specifies the grounds upon which objections are taken.110 At common law and in the old equity practice a special demurrer should point out specifically by paragraph, page, or folio, or other mode of reference, the. parts of the bill to which it is intended to apply. It must specify the 104 Amestoy v. Electric Rapid Transit Co., 95 Cal. 311, 30 Pac. 550. 105 People v. Mayor of New York, 28 Barb. 240, 8 Abb. Pr. 7; Buzzard v. Knapp, 12 How. Pr. 504; Amestoy v. Electric Rapid Transit Co., 95 Cal. 311, 30 Pac. 550. 106 Bas v. Steel, Pet. C. C. 406, Fed. Cas. No. 1087. 107 Childress v. Emory, 8 Wheat. 642, 5 L. Ed. 705; Christmas v. Russell, 5 Wall. 290, 18 L. Ed. 475. Compare Lockington v. Smith, Pet. C. C. 466, Fed. Cas. No. 8448; Tehama County v. Bryan, 68 Cal. 57, 8 Pac. 111 673; De Pedrorena v. Hotchkiss, 95 Cal. 636, 30 Pac. 787; Schmidt v. Market St. Ry. Co., 90 Cal. 37, 27 Pac. 61; Kimball v. Lyon, 19 Colo. 266, 35 Pac. 44. 108 Christmas v. Russell, 5 Wall. 290, 18 L. Ed. 475. 109 Triscony v. Orr, 49 Cal. 612; Cosgrove v. Fisk, 90 Cal. 75, 27 Pac. 56. And see Selz v. Tucker, 10 Utah, 132, 37 Pac. 249. 110 Drais v. Hogan, 50 Cal. 127. 111 Robinson v. Thompson, 2 Ves. & B. 118; Weatherhead v. Blackburn, 2 Ves. & B. 121; Dovensher v. Newen grounds upon which any of the objections to the complaint are taken;112 and if it omit such specifications it may be disregarded.11 This must be done in all cases, except-1. When objection is raised to the jurisdiction of the court; and 2. When the ground is that the complaint does not state facts sufficient to constitute a cause of action.114 A special demurrer is distinguished from a general demurrer by pointing out specially the causes for it.115 If a complaint fails to state a fact essential to the cause of action, the defendant may take advantage of the defect by a general demurrer.116 If, however, the complaint avers all the essential facts, but states them defectively or improperly, the defect can only be reached by a special demurrer, particularly designating the specific point at which it is aimed.117 The general rule is that a demurrer which does not distinctly specify the grounds of objection to the complaint will be disregarded.118 A demurrer to one of two counts may be sustained, and judgment be entered on the other against defendant.119 But a demurrer for a misjoinder of counts must be to the whole declaration," 120 and a cause of demurrer must be specially assigned.121 ham, 2 Sch. & Lef. 199; Story's Eq. Pl., § 457; Atwill v. Ferrett, 2 Blatchf. 39, Fed. Cas. No. 640; Jarvis v. Palmer, 11 Paige, 650; Kuypers v. Reformed Dutch Church, 6 Paige, 570. 112 Or. B. & C. Codes, § 67; Iarper v. Chamberlain, 11 Abb. Pr. 234. 113 Cal. Code Civ. Proc., § 431; N. Y. Code, § 490. 114 Stephens v. Parvin, 33 Colo. 60, 78 Pac. 688; Kent v. Snyder, 30 Cal. 666. See Anibal v. Hunter, 6 How. Pr. 255; Durkee v. Saratoga R. R. Co., 4 How. Pr. 226; Hinds v. Tweddle, 7 How. Pr. 278; Haire v. Baker, 5 N. Y. 357; Johnson v. Wetmore, 12 Barb. 433; Skinner v. Stuart, 13 Abb. Pr. 457; Viburt v. Frost, 3 Abb. Pr. 120; Hobart v. Frost, 5 Duer, 672; Nash v. Smith, 6 Conn. 421. 115 Reveille Steamboat v. Case, 9 Mo. 498; Jackson v. Rundlet, 1 Woodb. & M. 381, Fed. Cas. No. 7145. 116 Dixon v. Cardozo, 106 Cal. 506, 39 Pac. 857. And see Wilkeson Coal Co. v. Driver, 9 Wash. 177, 37 Pac. 307. 117 Harnish v. Bramer, 71 Cal. 155, 11 Pac. 888; Union Ice Co. v. Doyle, 6 Cal. App. 284, 92 Pac. 112; In re Warner Estate, 6 Cal. App. 361, 92 Pac. 191; Jacobs V. Union Mercantile Co., 17 Mont. 61, 42 Pac. 109. 118 Henderson v. Johns, 13 Colo. 280, 22 Pac. 461; Dodge v. Colby, 108 N. Y. 445, 15 N. E. 703. As to when it lies, and its effect, see Wheteroft v. Dunlop, 1 Cranch C. C. 5, Fed. Cas. No. 17506; Vowell v. Lyles, 1 Cranch C. C. 428, Fed. Cas. No. 17021; McCue v. Corporation of Wash., 3 Cranch C. C. 639, Fed. Cas. No. 8735; Malone v. Stilwell, 15 Abb. Pr. 421; Nellis v. De Forest, 16 Barb. 65; Chandler v. Byrd, Hempst. 222, Fed. Cas. No. 2591b; Cage v. Jeffries, Hempst. 409, Fed. Cas. No. 2287. 119 Barber v. Cazalis, 30 Cal. 92. 120 1 Chit. Pl. 180; Ferriss v. North American Fire Ins. Co., 1 Hill, 71. 121 Owsley v. Montgomery etc. R. R. Co., 37 Ala. 560. § 249. Joint demurrer.-If demurrer is filed to the answer and counterclaim by two or more plaintiffs jointly, the demurrer would be overruled, if the answer states a defense or counterclaim against either of the plaintiff's.122 § 250. Causes or grounds for demurrer. There are nine causes for which a demurrer may be interposed under section 430 of the California Code of Civil Procedure. Unless a ground of demurrer be included under one or more of such causes, it cannot be sustained.123 A defect which will defeat the plaintiff's present right to recover, in whole or in part, is a good ground of demurrer. 124 A complaint is not demurrable on account of defective allegations in regard to immaterial matters. 125 A party relying upon technical defects must observe technical rules.12 The demurrer is good if it assigns the grounds of objection substantially as they are defined in the statute.127 A demurrer will lie only when one of the several grounds of demurrer is apparent on the face of the complaint,128 and the defendant is confined to the objections specified.129 Special matters of defense cannot be raised by demurrer.130 122 Neumann v. Moretti, 146 Cal. 25, 79 Pac. 510. 123 Hentsch v. Porter, 10 Cal. 555; Harper v. Chamberlain, 11 Abb. Pr. 234. 124 Hentsch v. Porter, 10 Cal. 555. 125 Gardner v. California Guarantee Inv. Co., 137 Cal. 71, 69 Pac. 844. 126 Jackson v. Sumpter Valley Ry. Co., 50 Or. 455, 93 Pac. 356. 127 Lagow v. Neilson, 10-Ind. 183; De Witt v. Swift, 3 How. Pr. 280. But see Cal. Code Civ. Proc., § 431; Ellissen v. Halleck, 6 Cal. 386; Henderson v. Johns, 13 Colo. 280, 22 Pac. 461. 128 Simpson v. Loft, 8 How. Pr. 234; Getty v. Hudson River R. R. Co., 126 8 How. Pr. 177; Wilson v. Mayor of 129 Loomis v. Tifft, 16 Barb. 541; Lopez v. Central Arizona Min. Co., 1 Ariz. 464, 2 Pac. 748. 130 Gummer v. Mairs, 140 Cal. 535, 74 Pac. 26. CHAPTER XX. FORMS OF DEMURRERS. § 251. Defendant's grounds for demurrer. The defendant may demur to the complaint within the time required in the summons to answer, when it appears upon the face thereof, either1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; or, 2. That the plaintiff has not legal capacity to sue; or, 3. That there is another action pending between the same parties for the same cause; or, 4. That there is a defect or misjoinder of parties plaintiff or defendant; or, 5. That several causes of action have been improperly united, or not separately stated; or, 6. That the complaint does not state facts sufficient to constitute a cause of action; or, 7. That the complaint is ambiguous; or, 8. That the complaint is unintelligible; or, 9. That the complaint is uncertain.1 The demurrer must distinctly specify the grounds upon which any of the objections to the complaint are taken. Unless it do so, it may be disregarded. It may be taken to the whole complaint, or to any of the causes of action stated therein, and the defendant may demur and answer at the same time. When any of the grounds of demurrer do not appear upon the face of the complaint, the objection may be taken by answer. If no such 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.* 1 Cal. Code Civ. Proc., § 430, as amended 1907; Alaska Codes, pt. 4, ch. 7, § 58; Ariz. Civ. Code, par. 1351; Idaho Rev. Codes, § 4174; Mont. Rev. Codes, § 6534; Nev. Comp. Laws, § 3135; N. Mex. Comp. Laws, § 2685, subd. 35; Or. B. & C. Codes, § 68; Utah Rev. Stats., § 2962; Wash. Bal. Codes, §§ 2907-2911; Wyo. Rev. Stats, § 3535. 2 Cal. Code Civ. Proc., § 431, as amended 1907. 8 Cal. Code Civ. Proc., § 433. 4 Cal. Code Civ. Proc., § 434. These provisions of the California code are found in substance in all the codes. |