Want of capacity to sue means, as a general rule, a want of capacity to appear in court and maintain an action, regardless in whom is vested the right of action.""

46

§ 267. Other action pending. The fact must appear on the face of the complaint, for even if there is another action pending between the same parties, for the same thing, and the fact does not appear on the face of the complaint, the remedy is by answer, and not by demurrer. For a demurrer to lie under this subdivision, it must appear that both actions are for the identical cause of action. But the pendency of an action for divorce is no cause for demurrer to another for subsequent offenses." 48

47

$268. The same-Foreclosure.-In Nevada, where the complaint against the estate of a deceased person shows the fact that the claim had been allowed by the administrator, it is demurrable under this subdivision, as if it alleged a former suit and judgment upon the same claim.1o

§ 269. Former adjudication.-Where a bill disclosed that the subject-matter had been litigated between the same parties in a prior suit, and that in the said suit the plaintiff in this suit had set up the same equity which he claims by this bill, the bill was held bad on demurrer, and was ordered to be dismissed.50 Where the complaint shows there is another action pending before the supreme court still undetermined, it is subject to demurrer. The fact that a vessel, lost while being towed out to sea, is insured does not divest the owner of the right of action against the steam-tug towing her for her loss, and his recovery will bar another action for the same cause, and therefore the defendant cannot raise the objection that the action is not brought by the real party in interest.52

51

45 Hunt v. Monroe, 32 Utah, 428, 91 Pac. 269, 11 L. R. A. (N. S.) 249. 46 Burrows v. Miller, 5 How. Pr. 51; Hornfager v. Hornfager, 1 Code Rep. (N. S.) 412; Lowman v. West, 8 Wash. 355, 36 Pac. 258; Jackson v. McAuley, 13 Wash. 298, 43 Pac. 41. 47 Paige v. Wilson, 8 Bosw. 294; Kelsey v. Ward, 16 Abb. Pr. 98.

48 Cordier v. Cordier, 26 How. Pr.

187.

49 Corbett v. Rice, 2 Nev. 330. 50 Barnett v. Kilbourne, 3 Cal. 327. 51 Wetzstein v. Boston & M. etc. Min. Co., 28 Mont. 451, 72 Pac. 865.

52 White v. Mary Ann, 6 Cal. 462, 65 Am. Dec. 523.

§ 270. Other action pending-Quieting title.-In an action to quiet plaintiff's title, clouded by defendants giving out that the title is in themselves and not in plaintiff, an action of ejectment pending, in which the defendant does not ask for affirmative relief, is not available as a defense.53

§ 271. The same Judgment.-A judgment in favor of a receiver is a bar to a subsequent action in the same cause by the party for whom he was appointed, and a demurrer lies on this subdivision.54

§ 272. The same Ground. A demurrer lies under this subdivision when there is an action between the same parties in any proceeding in which the rights of the plaintiff in the last suit would be fully protected, whether strictly an action, attachment, citation before the surrogate, or a proceeding in court founded on a petition.55 So the pendency of another action brought by a defendant in partition would come under the rule.56 But the general rule is that the plaintiff in the latter action must be the plaintiff in the former, in order to sustain this plea.57 Nor can it be sustained if the other action is for relief, which could not be granted in the action in which the demurrer is interposed.58 Nor is it sustained where the other action is in a court of another state or a court of the United States.59 This objection must be raised under subdivision 3. It cannot be raised under subdivision 6, assigning for cause the want of sufficient facts.co

61

§ 273. Defect of parties.-A defect of parties plaintiff is a good cause of demurrer by all the defendants. But the fact that the party whose nonjoinder is alleged as ground of demurrer is living must appear affirmatively on the face of the complaint.62

53 Ayres v. Bensley, 32 Cal. 620. 54 Tinkham v. Borst, 24 How. Pr. 246.

55 Groshon v. Lyon, 16 Barb. 461. 56 Hornfager v. Hornfager, 6 How. Pr. 279.

57 Walsworth v. Johnson, 41 Cal. 63; O'Connor v. Blake, 29 Cal. 312; Certain Logs of Mahogany, 2 Sumn. 593, Fed. Cas. No. 2559; Wadleigh v. Veazie, 3 Sumn. 165, Fed. Cas. No. 17031.

58 Haire v. Baker, 5 N. Y. 357.

59 Burrows v. Miller, 5 How. Pr. 51; Cook v. Litchfield, 5 Sandf. 330. 60 Aiken v. Bruen, 21 Ind. 137. 61 Brownson v. Gifford, 8 How. Pr. 392; Walrath v. Handy, 24 How. Pr. 353.

62 Taylor v. Richards, 9 Bosw. 679; Burfess v. Abbott, 6 Hill, 135, 141; affirming 1 Hill, 476; State of Indiana v. Woram, 6 Hill, 33, 40 Am. Dec. 378; Scofield v. Van Syckle, 23 How. Pr. 97.

65

If the fact does not appear affirmatively, the objection must be taken by answer.63 It seems that section 122 of the New York code (to which section 389 of the California Code of Civil Procedure corresponds) is to control in determining whether a demurrer for defect of parties is well taken.64 This phrase does not include the joinder of an improper party. Defect means too few, not too many. 66 When it appears upon the face of the complaint that the presence of other parties is necessary to a complete determination of the controversy, a demurrer will lie for a defect of parties plaintiff or defendant. It is not within the office of a demurrer to state objections not apparent upon the face of the complaint, e. g. to name parties who should have been joined, and no conclusion is to be drawn from such statements adverse to the plaintiff.68 Unless objection be taken by demurrer the defect is waived. Thus where some of the part owners of a vessel sued to recover freight, and the complaint showed that the plaintiffs owned three eighths of the vessel only, and claimed to recover only their proportion of the freight money averred to be due, it was held that although all the owners should have joined in the action, yet the defendant had waived the objection by omitting to demur to the complaint.69 Where there is a defect of parties, it must appear that the party demurring has an interest in having such other party made a defendant, or that he is prejudiced by the nonjoinder," and where several parties are joined as plaintiffs, and the issues tendered are simple, a demurrer for multifariousness will not be sustained.72

70

§ 274. Nonjoinder of parties.-Under the New York Code of Civil Procedure the objection that necessary parties are not joined can only be taken by answer or demurrer. 78 The same is true

63 Brainard v. Jones, 11 How. Pr. 569; Scofield v. Van Syckle, 23 How. Pr. 97.

64 Wallace v. Eaton, 5 How. Pr. 99. 65 Great Western Comp. Co. V. Etna Ins. Co., 40 Wis. 373.

66 Bennett V. Preston, 17 Ind.

291.

67 Cohen v. Ottenheimer, 13 Or. 220, 10 Pac. 20.

68 Coe v. Beckwith, 10 Abb. Pr. 296. 69 Merritt v. Walsh, 32 N. Y. 685, followed in Donnell v. Walsh, 33 N. Y.

73

43, 88 Am. Dec. 361; Learned v. Cas tle (Cal), 4 Pac. 191, 3 West Coas: Rep. 154, 67 Cal. 41, 7 Pac. 34, 78 Cal. 454, 18 Pac. 872, 21 Pac. 11.

70 Hillman v. Hillman, 14 How. Pr. 460; Newbould v. Warrin, 14 Abb. Pr. 80; Wooster v. Chamberlin, 28 Barb. 602.

71 Stockwell v. Wager, 30 How. Pr. 271.

72 People v. Morrill, 26 Cal. 336. 73 N. Y. Code Civ. Proc., 1877, § 499. So in Colorado. Fitzgerald v.

under the California Code of Civil Procedure;" for example, the nonjoinder of a copartner as plaintiff which is not apparent upon the face of the complaint can only be taken by answer. And if not thus interposed, it is waived.75 It cannot be raised by demurrer to the evidence, nor by objection to the introduction of testimony." Demurrer for nonjoinder of state in action against town commissioners will be sustained.78 So also for nonjoinder of corporation in suit against directors for embezzlement of its assets. If the corporation is not made a defendant to a creditor's bill to collect unpaid subscriptions, and the objection is not set up by demurrer or answer, it is waived.80

§ 275. The same-Objection, how and when taken.-Although a demurrer to the answer reaches back to the complaint, a defect of parties cannot be taken advantage of in that way. A demurrer to the complaint must be filed.81 An allegation in an answer that the debt sued for, if due at all, is due to plaintiff and another as partners, cannot be treated as a demurrer.82 The objection to a defect of parties in the complaint, if apparent upon its face, should be taken advantage of by demurrer, or it must be deemed to have been waived at the trial.83 83 Also, an answer on the merits waives the question of misjoinder, though the same has been raised by demurrer and overruled, and is again pleaded in the answer. 84 The court may sustain defendant's objection to the introduction of testimony upon a certain point, though it previously overruled

Burke, 14 Colo. 559, 23 Pac. 993. By demurrer or motion, in South Dakota. Sykes v. First Nat. Bank, 2 S. Dak. 242. 49 N. W. 1058.

74 Cal. Code Civ. Proc., § 434; Rowe v. Bacigalluppi, 21 Cal. 633; Heinlen v. Heilbron, 71 Cal. 557, 12 Pac. 673; Hosley v. Black, 28 N. Y. 438, 26 How. Pr. 97; Creed v. Hartmann, 29 N. Y. 591, 86 Am. Dec. 341; Lee v. Wilkes, 27 How. Pr. 336, 19 Abb. Pr. 355.

75 Conklin v Barton, 43 Barb. 435. 76 Groenmiller v. Kaub, 67 Kan. 844, 73 Pac. 100.

77 Dickerson v. City of Spokane, 26 Wash. 292, 66 Pac. 381.

78 Plumtree v. Dratt, 41 Barb. 333. 79 Gardiner v. Pollard, 10 Bosw. 674.

80 Henderson v. Turngren, 9 Utah, 432, 35 Pac. 495.

81 McEwen v. Hussey, 23 Ind. 395. 82 Andrews v. Mokelumne Hill Co., 7 Cal. 330.

83 Dunn v. Tozer, 10 Cal. 170; Burroughs v. Lott, 19 Cal. 125; Barber v. Reynolds, 33 Cal. 497; Robinson v. Smith, 3 Paige, 222, 24 Am. Dec. 212; Higgins v. Freeman, 2 Duer, 650; Dillaye v. Parks, 31 Barb. 132; Wright v. Storrs, 6 Bosw. 600; Palmer v. Davis, 28 N. Y. 242; Tremper v. Conklin, 44 Barb. 456; Soeding v. Bartlett, 35 Mo. 90.

84 Diamond Rubber Co. v. Harryman, 41 Colo. 415, 92 Pac. 922, 15 L. R. A. (N. S.) 775; Sams Automatic Car Coupler Co. v. League, 25 Colo. 129, 54 Pac. 642.

a demurrer upon the same point of law.85 Thus in an action for the distribution of a fund by a trustee, the absence of necessary parties plaintiff, though demurrable at the time, is a defect cured by failure to respond.s

87

§ 276. The same Statement.-A demurrer under this subdivision following the words of the code, that there is a defect of parties defendant, is insufficient for not specifying the particular defect. It must show who are the proper parties from the facts stated in the bill; not indeed by name, for that might be impossible; but in such a manner as to point out to the plaintiff the objection to his bill, and to enable him to amend by making proper parties.88

§ 277. Misjoinder of executor. The executor of an indorser of a promissory note, who as such executor is sued together with the maker, cannot demur to the complaint in such action for a misjoinder of defendants, if the complaint states facts sufficient to constitute a cause of action against him in his representative character.89

§ 278. Misjoinder-Form of demurrer.-A demurrer on the ground "that the complaint does not state facts sufficient to constitute a cause of action, "'90 and which then specifies that the complaint shows no joint cause of action in the plaintiff, and that it prays for a judgment in favor of three plaintiffs for an injury done to one, is a good demurrer for misjoinder of parties."1

§ 279. Ground for demurrer.-A misjoinder of parties plaintiff is a ground for demurrer. It is not a ground for nonsuiting such plaintiffs as are entitled to recover.92 Misjoinder of parties plaintiff or defendant is not ground for demurrer under the code of Oklahoma.93 And misjoinder of parties plaintiff is not ground.

85 O'Day v. Amtaum, 47 Wash. 684, 92 Pac. 421, 15 L. R. A. (N. S.) 484, Wash. Bal. Codes, § 4911.

86 General Mutual Ins. Co. v. Benson, 5 Duer, 168.

87 Skinner v. Stuart, 13 Abb. Pr. 442.

88 Story's Eq. Pl. 501, § 543; Dias v. Bouchaud, 10 Paige, 445; Robinson v. Smith, 3 Paige, 222; 24 Am. Dec. 212. 89 Churchill v. Trapp, 3 Abb. Pr. 306.

90 Mann v. Marsh, 35 Barb. 68, 21 How. Pr. 372; Walrath v. Handy, 24 How. Pr. 353.

91 Summers v. Farish, 10 Cal. 347; Cohen v. Ottenheimer, 13 Or. 220, 10 Pac. 20.

92 Rowe v. Bacigalluppi, 21 Cal. 633; White v. Delschneider, 1 Or. 254; Learned v. Castle (Cal.), 4 Pac. 191, 3 West Coast Rep. 154.

93 Stiles v. City of Guthrie, 3 Okla. 26, 41 Pac. 383.