tiff, is a sufficient allegation of such facts.265 But averment of ownership in plaintiff is unnecessary.266

§ 334. Official bond. In an action on an official bond, if the complaint alleges the execution of the bond, and a copy of the bond annexed should not contain the signature of the principal, defendant may demur for ambiguity.267 A complaint in an action on the bond given by a tax-collector is not ambiguous and uncertain because it does not aver that any of the money sued for was collected on account of foreign miners' licenses.268

§ 335.

Uncertainty of description-Conjunctive demurrer.— A demurrer to a complaint upon the ground that it is ambiguous, unintelligible, and uncertain, for the reason that it does not contain a sufficient description of the property sued for, if in fact the complaint is not ambiguous nor unintelligible, does not raise the question of uncertainty as to the description.269

§ 336. The same Agency.-A declaration setting forth that plaintiff had purchased a quantity of goods from W. and P., "then and there acting as agent of the defendant," is only another form of declaring that he had purchased from the defendant, and is sufficiently certain to prevent any misapprehension of its meaning, and is good on demurrer.270

§ 337. Defect must be apparent.-A pleading should not be demurred to-1. Unless it is clearly demurrable; and, 2. Except for cause which clearly appears upon the face of the complaint.271 The fact that the statute gives several instances wherein a demurrer may be made affords no excuse for exhausting the list on every complaint demurred to, although several causes of demurrer may be assigned. A complaint which entirely fails to state a breach of the contract sued upon, or to allege the non-payment of money sought to be recovered, states no cause of action, and may be assailed by general demurrer. But if there

265 Kennedy v. Dickie, 27 Mont. 70, 69 Pac. 672.

266 McGrew v. Lamb, 31 Wash. 485, 72 Pac. 100.

267 Mendocino Co. v. Morris, 32 Cal. 145.

268 People v. Love, 25 Cal. 520.

269 Greenebaum v. Taylor, 102 Cal. 624, 36 Pac. 957.

270 Cochran v. Goodman, 3 Cal.

245.

271 Davy v. Betts, 23 How. Pr. 395; Dillaye v. Wilson, 43 Barb. 261.

is not an entire failure to state the fact of breach or non-payment, and the averment is simply uncertain and defective, the defect can only be reached by special demurrer particularly designating the specific point at which it is aimed.272 In an action to recover money upon a contract, the failure to pay constitutes the breach, and must be alleged. And an allegation that specified amount is "now due and owing" to the plaintiff is a mere conclusion of law, and is insufficient as an averment of the fact of non-payment.273

§ 338. Waiver of objections-Failure to demur.-When a cause is tried without objection to the complaint by demurrer, either general or special, as if the complaint were in all respects sufficient, no error or defect therein which does not affect the substantial rights of the parties will be ground for reversal of the judgment.274 So objections to a complaint which are grounds of special demurrer are waived where the demurrer is general and no special grounds are specified therein. 275 Moreover, in aid of the judgment, the complaint must receive as favorable an interpretation as its general scope will warrant.276 Where no demurrer is interposed to the complaint, all merely technical objections thereto are waived.277 But the ground of a general demurrer is neither waived by failure to demur nor by consent that the demurrer be overruled.27 The submission of a demurrer without argument is not a waiver of any objection raised thereby.279 Nor is the right to demur waived by calling for a bill of particulars.280 The objection to misjoinder of parties appearing upon the face of the complaint or petition is waived by failure to specify it properly as a ground of demurrer, and cannot be thereafter urged.2 When defendants

272 Grant v. Sheerin, 84 Cal. 197, 23 Pac. 1094.

273 Ryan v. Holliday, 110 Cal. 335, 42 Pac. 891; Richards v. Land Co., 115 Cal. 642, 47 Pac. 683.

274 People v. Reis, 76 Cal. 269, 18 Pac. 309; Reynolds v. Lincoln, 71 Cal. 183, 9 Pac. 176, 12 Pac. 449.

275 Daggett v. Gray, 110 Cal. 169, 42 Pac. 568.

276 Fudickar v. Irrigation District, 109 Cal. 29, 41 Pac. 1024. See, also, Glide v. Dwyer, 83 Cal. 477, 23 Pac. 706.

281

277 Dennison v. Chapman, 105 Cal. 447, 39 Pac. 61.

278 Evans v. Gerken, 105 Cal. 311, 38 Pac. 725; Porter v. Booth, 1 S. Dak. 558, 47 N. W. 960.

279 Richards v. Travellers' Ins. Co., 80 Cal. 505, 22 Pac. 939.

280 Mulvey v. Staab, 4 N. Mex. 50, 12 Pac. 699.

281 O'Callaghan v. Bode, 84 Cal. 489, 24 Pac. 269. See, also, People v. District Court, 18 Colo. 293, 32 Pac. 819; Ralph v. Lomer, 3 Wash. 401, 28 Pac. 760.

enter upon and proceed to trial upon the merits without demanding a ruling upon a demurrer they waive the demurrer. 282 If the defendant demurs and afterwards answers, but before trial withdraws the answer and allows judgment to be entered, it will be presumed that he waived the demurrer, where the record discloses nothing to the contrary.283 But a demurrer is not waived by the filing of an answer upon leave given by the court after the demurrer is overruled,284 nor by filing an answer with the demurrer, if the statutes of the state permit it.285 Under the Utah Code of Civil Procedure a party does not waive his demurrer by filing an answer at the same time or after the demurrer or by going to trial upon his answer, but it is questioned whether this applies to a demurrer that is special for ambiguity and uncertainty.286 Objections against a complaint which should have been made by demurrer on the ground of uncertainty. cannot be urged upon appeal, where no demurrer has been filed in the trial court.287 A defective statement of facts in a pleading is waived by joining issue upon them.288 Where no misjoinder of parties is specially pleaded in a joint action against two defendants it is waived.289

§ 339. Complaint and demurrer thereto Miscellaneous cases. If the facts stated in a complaint entitle the plaintiff to any relief, a demurrer for want of sufficient facts should be overruled.2 290 And a demurrer by all of several defendants reciting that they demur jointly as well as separately and severally to the "first, second, and third paragraphs of the complaint,'

282 Danielson v. Gude, 11 Colo. 87, 17 Pac. 283. See, to same effect, Hockaday v. Commissioners, 1 Colo. App. 362, 29 Pac. 287; Guthrie v. Phelan, 2 Idaho, 95, 6 Pac. 107; Francisco v. Benepe, 6 Mont. 243, 11 Pac. 637; Wright v. Sherman, 3 S. Dak. 290, 52 N. W. 1093, 17 L. R. A. 792; Olds v. Cary, 13 Or. 362, 10 Pac. 786; Fillmore v. Wells, 10 Colo. 228, 3 Am. St. Rep. 567, 15 Pac. 343; Spanish Fork City v. Hopper, 7 Utah, 235, 26 Pac. 293.

283 Evans v. Jones, 10 Utah, 182, 37 Pac. 262; Brooks v. Douglass, 32 Cal. 209.

284 Curtiss v. Bachman, 84 Cal. 216, 24 Pac. 379.

285 State v. Edwards, 33 Utah, 243, 93 Pac. 720.

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

287 Seligman v. Armando, 94 Cal. 314, 29 Pac. 710.

288 Davis v. Wait, 12 Or. 425, 8 Pac. 356.

289 Gruhn v. Stanley, 92 Cal. 86, 28 Pac. 56.

290 Raymond V. Blancgrass, 36 Mont. 449, 93 Pac. 648, 15 L. R. A. (N. S.), 976; Bloomfield R. R. Co. v. Van Slike, 107 Ind. 480, 8 N. E. 269; United States Sav. Fund etc. Co. v. Harris, 142 Ind. 226, 40 N. E. 1072, 41 N. E. 451. See Aldrich v. Boice, 56 Kan. 170, 42 Pac. 695.

will be treated as a general demurrer by all the defendants, and is bad if the complaint is good against any of them.291 Under Florida procedure, the failure of the plaintiff to attach a copy of his cause of action to his declaration cannot be taken advantage of by demurrer, and the defendant's proper remedy is to refuse to plead until such cause of action is filed.292 The proper remedy, under Maryland practice, where the paragraphs of a bill in equity are wrongly numbered and more than one subject-matter is embraced in a single paragraph, is by motion in the nature of a ne recipiatur, and not by demurrer.293 A complaint setting up two causes of action for breach of contract is not rendered demurrable because they are not separately stated and numbered.294 In an action upon a contract, which recognizes the right of the parties to make assignments, a complaint setting up the contract is not demurrable because. the action is by and against different parties than those named in the contract, when the complaint shows their interest through assignment.295 The objection that the averments of a complaint are made on information and belief is not a ground of demurrer, either general or special.290 Error in sustaining a demurrer to a complaint on the ground of the misjoinder of several causes of action is held to be waived, if the plaintiff subsequently files an amended complaint, in which he unites and pleads anew in one count all the causes of action which had been pleaded in the original complaint.207 A stipulation that a demurrer to the complaint may be overruled, and the defendant allowed to answer within a certain time, does not estop the defendant from relying at any future stage of the case on the alleged failure of the complaint to state sufficient facts to constitute a cause of action.298

291 Armstrong v. Dunn, 143 Ind. 433, 41 N. E. 540. See Rogers v. Schubenburg, 111 Cal. 281, 43 Pac.

899.

292 Martyn v. Arnold, 36 Fla. 446, 18 South. 791.

293 Chew v. Glenn, 82 Md. 370, 33 Atl. 722.

294 Zrskowski v. Mach, 36 N. Y. Supp. 421, 15 Misc. 234; Nichols v. Drew, 94 N. Y. 22.

295 Van Horne V. Watrous, 10 Wash. 525, 39 Pac. 136. Bill in equity by stockholders of corporation

held good against a general demurrer. See Moyle v. Landers, 83 Cal. 579, 23 Pac. 798.

296 Carpenter v. Smith, 20 Colo. 39, 36 Pac. 789; Jones v. Mining Co., 20 Colo. 417; Marie v. Garrison, 83 N. Y. 23.

297 Loveland v. Garner, 71 Cal. 541, 12 Pac. 616. Compare Wood v. Mastick, 2 Wash. T. 64, 3 Pac. 612; Mutual etc. Loan Association v. Bradbury, 53 N. J. Eq. 643, 33 Atl. 960.

298 Hitchcock v. Caruthers, 82 Cal. 523, 23 Pac. 48.

§ 340. Demurrer - Miscellaneous decisions pertaining to.The sufficiency of a pleading is properly tested by demurrer. 299 On demurrer, only the pleadings can be considered.300 The sufficiency of the facts in a pleading on a demurrer thereto cannot be strengthened or weakened, added to or diminished by facts stated in other pleadings subsequently filed, or by the facts proven on the trial.301 When a demurrer is interposed, the sufficiency of any antecedent pleading to which the pleading demurred to relates may be called in question.302 A demurrer searches the entire record, and judgment should go against the party whose pleading was first defective in substance.808 Although a party may be required, on motion, to conform his statements in pleadings to the rules of good pleading, yet, as against a demurrer, evidentiary facts, and even inferences from averments amounting to mere conclusions of law, will be considered in his favor.304 Where a demurrer has been sustained to one of the counts in a declaration, it is error to permit such count to be read to the jury, or to receive evidence thereupon.305 The trial judge can pass on the sufficiency of an amended complaint at the time of trial, as to whether it states facts sufficient to constitute a cause of action, even though a demurrer thereto on the same grounds had been overruled by another judge of the same court.806 A patent manifestly invalid upon its face may be so declared on demurrer to the bill.307 But this power should be exercised with the utmost caution and only in the plainest cases, and if there is any doubt it should be resolved in favor of the patent.308 The question of the propriety of issuing a writ of ne exeat cannot be raised by demurrer.309

299 The Victorian, 24 Or. 121, 41 Am. St. Rep. 838, 32 Pac. 1040.

300 Madgeburg v. Uihlein, 53 Wis. 165, 10 N. W. 363; Northwestern Iron Co. v. Central Trust Co., 90 Wis. 570, 580, 63 N. W. 752, 64 N. W. 323.

301 Cole v. Gray, 139 Ind. 396, 399, 38 N. E. 856; Elwood etc. Oil Co. v. Baker, 13 Ind. App. 576, 41 N. E. 1063.

302 Knight v. Lawrence, 19 Colo. 425, 36 Pac. 242.

303 Hawthorne v. State, 45 Neb. 871, 64 N. W. 359; Oakley v. Valley County, 40 Neb. 900, 59 N. W. 368.

304 Chambers v. Hoover, 3 Wash. T. 107, 13 Pac. 466. See Santa Barbara v. Eldred, 108 Cal. 294, 41 Pac. 410.

305 Luna v. Mohr, 3 N. Mex. 56, 1 Pac. 860.

306 McConaghy v. Clark, 35 Wash. 689, 77 Pac. 1084.

307 Heaton-Peninsula Button Fas tener Co. v. Schlochtmeyer, 69 Fed. 592.

308 Davock v. Chicago etc. R. R. Co., 69 Fed. 468; Covert v. Travers, 70 Fed. 788; New York etc. Packing Co. v. New Jersey etc. Rubber Co., 137 U. S. 445, 11 Sup. Ct. Rep. 193, 34 L. Ed. 741.

809 Shainwald v. Lewis, 69 Fed. 487.