on both sides, as though it were raised by the demurrer, the order sustaining the demurrer was reversed, without prejudice to the right of the respondent to object to the want of proper parties.1 177 § 304. Definition of terms.-The words, "the complaint does not state a sufficient cause of action," held equivalent to the language of the code.178 But when certain deficiencies are specified, all other grounds for objection are excluded. 179 A complaint for money had and received, which fails to allege a demand, is bad on demurrer." 180 305. Insufficient facts-Demurrer, how taken. In the sixth. subdivision, a demurrer to a complaint will be sustained "when the complaint does not state facts sufficient to constitute a cause of action." It applies only to such defects as would render the count bad on general demurrer at law, or bad for want of equity in chancery. The complaint, therefore, to be overthrown by such a demurrer, must present defects so substantial in their nature, and so fatal in their character, as to authorize the court to say, taking all the facts to be admitted, that they furnish no cause of action whatever. Where the demurrer admits facts enough to constitute a cause of action, the complaint will be sustained; and if the defendant required a greater degree of certainty than is found in the complaint, he must seek his relief by a motion that the pleading be made more certain and definite." Where a complaint fails to state a cause of action, and the defendant at the trial objects on that ground to the introduction of any evidence, such objection is equivalent to a general demurrer, and a judg ment for the plaintiff must be reversed.182 Demurrer under this subdivision may be taken at any stage of the case.183 Nor is the 177 Burhop v. City of Milwaukee, 18 Wis. 431. 178 De Witt v. Swift, 3 How. Pr. 280. 179 Nellis v. De Forest, 16 Barb. 61. 180 Reina v. Cross, 6 Cal. 31. 181 Summers v. Farish, 10 Cal. 347; Allen v. Patterson, 7 N. Y. 476, 57 Am. Dec. 542; Richards v. Beavis, 28 Eng. L. & Eq. 157; People v. Mayor of New York, 8 Abb. Pr. 7; Sinclair v. Fitch, 3 E. D. Smith, 677; Thomson v. O'Sullivan, 6 Allen, 303. 181 182 Hays v. Lewis, 17 Wis. 210. 183 Gould v. Glass, 19 Barb. 186; Higgins v. Freeman, 2 Duer, 650; Montgomery County Bank v. Albany City Bank, 7 N. Y. 464; Hays v. Lewis, 17 Wis. 210; People v. Booth, 32 N. Y. 397; Stevenson v. Lord, 15 Colo. 131, 25 Pac. 313; Farris v. Henderson, 1 Okla. 384, 33 Pac. 380; Johnson v. Burnside, 3 S. Dak. 230, 52 N. W. 1057; Lyen v. Bond, 3 Wash. T. 407, 19 Pac 35. failure to demur upon this ground a waiver of the objection.184 But under this subdivision defendant cannot bring objections to the form of the action;185 nor that the court has no jurisdiction;186 nor that there is an improper joinder of parties;187 nor that the plaintiff has no legal capacity to sue;188 nor that the right to sue is in a third person not a party to the action;189 nor that complaint does not show authority to sue.190 The practice of pleading to the merits, and then raising at the trial an objection in the nature of a demurrer to the sufficiency of the pleading, is one which the courts should discourage.191 The objection that money sued for, if due at all, is due to plaintiff and another as partners, is not a demurrer.192 So, when the bill alleges a parol trust, a general demurrer will not lie." 193 § 306. Uncertainty-Divorce.-An objection that a complaint for divorce, stating the existence of common property, is uncertain and defective in not stating the facts showing the property to be common, must be raised by demurrer, or it will be deemed waived.194 § 307. The same-Effect.-A demurrer on this subdivision puts in issue the validity of the entire complaint.195 And if it specifies certain allegations deemed essential, it excludes all other grounds of objections than those which are particularly set forth.196 And the statement that certain parts of the complaint are immaterial and redundant does not vitiate the demurrer.197 But defendants cannot by demurrer refuse to grant a compensation which the demurrer admits the right of.198 184 Cal. Code Civ. Proc., § 434; Andrews v. Lynch, 27 Mo. 167; Ludington v. Taft, 10 Barb. 447. 185 Richards v. Edick, 17 Barb. 260; Graham v. Camman, 5 Duer, 697; Loomis v. Tifft, 16 Barb. 541. 186 Wilson v. Mayor of New York, 6 Abb. Pr. 6, 15 How. Pr. 500, 4 E. D. Smith, 706, note. 187 Eldridge v. Bell, 12 How. Pr. 547. 188 Viburt v. Frost, 3 Abb. Pr. 120; Hobart v. Frost, 5 Duer, 672. 189 Myers v. Machado, 6 Abb. Pr. 198. But see Palmer v. Smedley, 6 Abb. Pr. 205; De Witt v. Chandler, 11 Abb. Pr. 459. 190 Bank of Lowville v. Edwards, 11 How. Pr. 216; Bank of Havana v. 191 Barton v. Gray, 48 Mich. 166, 12 N. W. 30; Bauman v. Bean, 57 Mich. 1, 23 N. W. 451; Jenkinson v. City of Vermilion, 3 S. Dak. 238, 52 N. W. 1066. 192 Andrews v. Mokelumne Hill Co., 7 Cal. 330. 193 Peralta v. Castro, 6 Cal. 354. 194 Gimmy v. Gimmy, 22 Cal. 633. 195 White v. Brown, 14 How. Pr. 282; Spear v. Downing, 12 Abb. Pr. 442, 34 Barb. 523. 196 Nellis v. De Forest, 16 Barb. 61. 197 Smith v. Brown, 6 How. Pr. 383. 198 Selkirk v. Board of Supervisors Sacramento Co., 3 Cal. 323. § 308. The same-Laches. When the bill shows that the complainant, who seeks to enforce a judgment at law, is chargeable with laches, the defendant may take advantage of it by demurrer. 199 § 309. The same-Exhibits.-Matters which are necessary to be alleged in a complaint, cannot be left out, and the defect. supplied by reference to an exhibit attached to and made part of the complaint.200 An objection to a complaint that a specific allegation contained therein is contradicted by an exhibit to which reference is made cannot be taken advantage of by general demurrer. 201 § 310. Guaranty.-A complaint alleging that the defendants sold to plaintiffs a certain share of fruit growing in an orchard, and after the sale executed a warranty that the share of plaintiffs should be at their disposal, and further alleging a demand for the same, and the refusal of the defendant to deliver, is demurrable, as it should have contained an assignment of the breach of the contract or guaranty.202 § 311. Inferential statement.-If a material fact is only stated. inferentially in a complaint, and the pleading is not demurred to specially for this reason, it is good after judgment.203 § 312. Liens.-An objection to a lien for want of dates may be made on demurrer or on a motion to strike out, but after pleading to the scire facias, it must be considered as waived.204 § 313. Performance.-Where a complaint states a condition precedent, but fails to aver performance, defendant may demur.205 A complaint which does not allege performance of one of the essential conditions imposed upon the plaintiffs by the terms of the contract, fails to state a cause of action.206 So in case of a promissory note.207 A demurrer for the cause that complaint 199 Maxwell v. Kennedy, 8 How. 210, 12 L. Ed. 1051. 200 City of Los Angeles v. Signoret, 50 Cal. 298. 201 Blasingame v. Home Ins. Co., 75 Cal. 633, 17 Pac. 925. 202 Dabovich v. Emeric, 7 Cal. 209. 203 Hill v. Haskin, 51 Cal. 175. 204 Howell v. City of Philadelphia, 38 Pa. St. 471. 205 Happe v. Stout, 2 Cal. 460. 206 Jones v. Perot, 19 Colo. 141, 34 Pac. 728. 207 Rogers v. Cody, 8 Cal. 324. does not state facts sufficient to constitute a cause of action may be disregarded, if defendant choose to answer instead of standing on the demurrer.208 314. Presentation of claim.-Where, in an action of foreclosure, the complaint fails to state the presentation to and rejection by the administrator of the claim against the estate, defendant may demur on the ground of insufficient facts.209 § 315. Quo warranto.-In quo warranto for an alleged usurpation of the office of pilot for the port of San Francisco, the complaint avers that defendants hold, use, exercise, usurp, and enjoy the office without a license; and also certain allegations as to the right of relator to the office; it was held that these allegations as to the relator's right cannot be reached by general demurrer, the complaint being good as against the defendants; that they are not interested in the question as to the right of relator, but only in the determination of their own right to the office.210 § 316. Res adjudicata.-Demurrer will not lie to a bill on the ground of res adjudicata, unless it avers that everything in controversy, as the foundation of the suit, was in controversy in the former suit.211 The judgment of a court of competent jurisdiction upon a material matter put directly in issue by the pleading is res adjudicata as to that issue, and the parties are estopped by the judgment from litigating it again.212 A general demurrer does not raise the question whether a judgment pleaded as an estoppel does estop the defendants.213 § 317. Securities.-The objection that securities sued on are not promissory notes must be made on demurrer.214 208 Levey v. Fargo, 1 Nev. 415. But see Cal. Code Civ. Proc., § 431. 209 Ellissen v. Halleck, 6 Cal. 386; Falkner V. Folsom, 6 Cal. 412; Hentsch v. Porter, 10 Cal. 558. These cases are overruled by Fallon v. Butler, 21 Cal. 24, 81 Am. Dec. 140; and the correctness of the latter decision is doubted by the case of Ellis v. Polhemus, 27 Cal. 354. The case of Ellissen v. Halleck, 6 Cal. 393, is either discussed or referred to in the following cases: Falkner v. Folsom's Exrs., 6 Cal. 412; Gates v. Kieff, 7 Cal. 124; Williamson v. Blattan, 9 Cal. 501; Willis v. Farley, 24 Cal. 498. 210 People v. Abbott, 16 Cal. 358. 211 Moss v. Anglo-Egyptian Nav. Co., L. R., 1 Ch. 108; Smith v. Halifax Banking Co., 1 N. B. Eq. 17. 212 Jackson v Lodge, 36 Cal. 28. 213 Spanagel v. Reay, 47 Cal. 608. 214 Powell v. Ross, 4 Cal. 197. § 318. Services of physician. In a suit by a physician against a county on a contract for his services for one year as examining physician of the hospital, the objection that he is not a graduate of a legally constituted medical institute, if good at all, cannot be taken by demurrer, unless the demurrer distinctly presents the objection.215 § 319. Specific relief.-To entitle the plaintiff to subject the assets of an absent debtor to the payment of his claim, he must show that he is without a remedy at law, and if the bill discloses such remedy at law it will be dismissed upon demurrer.216 § 320. Stamp on note.-A demurrer will not lie to a complaint on a promissory note which fails to aver or show that the note was duly stamped.217 § 321. Statement of grounds.-The demurrer is sufficient without a specification of the reason why the facts stated are not sufficient.21 It is sufficient under this subdivision to state that the complaint does not state facts sufficient to constitute a cause of action.2 219 § 322. Statute of frauds.-The statute of frauds may be taken advantage of on demurrer to a bill which on its face states a case covered by the statute.220 But where the contract declared upon is void if not in writing, the court will assume, for the purposes of the demurrer, that it is in writing, though not so alleged.2 221 § 323. Statute of limitations.-If it appear on the face of the complaint that the demand is barred by the statute of limitations, demurrer will be sustained. But the bar of the statute must clearly appear on the face of the complaint,222 and the court cannot refer to the process, return of service, or other parts of the record not part of the pleadings, to ascertain when the action was 215 MeDaniel v. Yuba County, 14 Cal. 444. 216 Lupton v. Lupton, 3 Cal. 120. 217 Hallock v. Jaudin, 34 Cal. 167. 218 Kent v. Snyder, 30 Cal. 666. 219 Haire v. Baker, 5 N. Y. 357; Paine v. Smith, 2 Duer, 298; Johnson v. Wetmore, 12 Barb. 433. 220 Randall v. Howard, 2 Black, 585, 17 L. Ed. 269; Manning v. Pippen, 86 Ala. 357, 11 Am. St. Rep. 46, 5 South 572; Dicken v. McKinley, 163 Ill. 318, 54 Am. St. Rep. 471, 45 N. E. 134. 221 Miles v. Thorne, 38 Cal. 337, 99 Am. Dec. 384. 222 Smith v. Hall, 19 Cal. 85; Smith v. Richmond, 19 Cal. 476; Ord v. De La Guerra, 18 Cal. 67; Kraner v. Halsey, 82 Cal. 209, 22 Pac. 1137; Meyer v. Saul, 82 Md. 459, 33 Atl. 539; Fulton v. Northern Illinois College, 158 |