§ 341. Sufficiency of complaint - Miscellaneous decisions. In determining the sufficiency of a complaint the averments therein can alone be considered. And the rule in some jurisdictions is that a complaint which does not state a cause of action by its averments, without reference to exhibits, is bad on demurrer. 3 310 The claim after judgment that a complaint is insufficient can only be sustained on the ground that the facts contained therein, even if well stated, constitute no action. The objection that the allegata and probata do not agree cannot be urged after verdict rendered, if the complaint is sufficient to support the judgment.312 cause of - A com § 342. The same - Alleging unilateral contract. plaint in an action by a vendor against a vendee of goods for refusal to accept and pay therefor, which alleges that the plaintiff entered into a contract with the defendant to furnish, sell, and deliver to the defendant certain specified goods at a stipu lated price named, but nowhere alleges that the defendant bought, purchased, or agreed to accept or pay therefor, or any part thereof, states a unilateral contract, and is obnoxious to a general demurrer. 313 § 343. The same Action for recovery of personal property. -Under the code of South Dakota, the action to recover personal property takes the place of, and is substitute for, both the former actions of replevin and detinue. The unlawful detention is the gist of the action, and it is immaterial how the defendant acquired the possession, so far as the action to recover the property is concerned. The principal issues in the action are the plaintiff's right to possession, the defendant's unlawful detention, the value of the property, and damages for its detention.314 310 Aultman etc. Co. v. Siglinger, 2 S. Dak. 442, 50 N. W. 911; Bowling v. McFarland, 38 Mo. 465; Larimore v. Wells, 29 Ohio St. 13. But see Taylor v. MacLea, 11 N. Y. Supp. 640. 311 Rhodes v. Hutchins, 10 Colo. 258, 15 Pac. 329; Buenz v. Cook, 15 Colo. 38, 24 Pac. 679; Bethel v. Woodworth, 11 Ohio St. 396. This ob jection may be taken at any time. Holly v. Heiskell, 112 Cal. 174, 44 312 Horn v. Hamilton, 89 Cal. 276, 26 Pac. 833. See, also, United States v. Small, 3 Wash. T. 478, 17 Pac. 739. 313 Robinson etc Min. Co. v. Johnson, 13 Colo. 258, 22 Pac. 459, 5 L. R. A. 769. 814 Willis v. DeWitt, 3 S. Dak. 281, 52 N. W. 1090. § 344. The same Failure to aver demand.-When the time has come for the doing of an act which it is the duty of the defendant to do unconditionally, no demand other than the suit itself is necessary. Nor is a demand before suit required. where it appears that it would have been unavailing, and would not have changed the right and relations of the parties, or where the answer denies the relation on which the action is founded, although a demand and refusal would otherwise be a condition precedent to the right of the plaintiff to maintain the action.316 Stockholders may maintain a suit in equity against the corporation and its board of directors whenever it appears that otherwise there will be a failure of justice.* And where it is apparent that a demand upon the managing body of the corporation would be unavailing, an action by the stockholders may be maintained without alleging or proving any notice, request, demand, or express refusal. 317 316 § 345. The same-Action for removing fixtures.-An action for damages will lie in favor of a mortgagee whose security is impaired by the removal of fixtures permanently attached. to the realty, against the person or persons removing them. And a complaint against the mortgagor and another defendant claiming to be a purchaser of the fixtures, alleging that they removed such fixtures, well knowing that they would thereby impair and render insufficient the plaintiff's security, and that it was thereby rendered insufficient; that the mortgagor is insolvent, and that after foreclosure of the mortgage an unsatisfied personal judgment remains for a deficiency, sufficiently states a cause of action.318 § 346. The same-Allegation of damages. In an action by a married woman for personal injuries, she is entitled to recover damages for any impairment of her capacity, as a previously healthy woman, to earn money, and, when so injured as to cause great pain and suffering in and about the womb and back, the damages thereby resulting through impairment of her 315 Cox v. Delmas, 99 Cal. 104, 33 Pac. 836. 316 Miller v. Murray, 17 Colo. 408, 30 Pac. 46; Hawes v. Oakland, 104 U. S. 450, 26 L. Ed. 827. 317 Jones v. Pearl Min. Co., 20 Colo. 417, 38 Pac. 700; Smith V. Dorn, 96 Cal. 73, 30 Pac. 1024. 318 Lavenson v. Standard Soap Co., 80 Cal. 245, 13 Am. St. Rep. 147, 22 Pac. 184. capacity to work need not be specially pleaded, but may be recovered under a general averment.31 § 347. The same - Alleging mutual mistake. In an action to reform an agreement for the sale of land, an averment in the complaint, to the effect that by mistake a description of the land different from that intended by the parties to the agreement was inserted therein, is, in the absence of a demurrer, a sufficient allegation that the mistake was a mutual mistake of the parties to the agreement, and a finding in the language of the complaint is sufficient to support the judgment.320 § 348. The same - Pre-emption claim-Conclusion of law.Where, in an action against a pre-emption claimant, the plaintiff claims priority of right over the defendant to become the purchaser from the government, and to receive a patent for the land in controversy, under a pre-emption claim, it is not enough to allege he had or has such right, as that allegation is a mere conclusion of law, but the plaintiff must show the state of facts conferring such right, and also that he took the legal steps to avail himself thereof.321 § 349. The same-Action to determine right to patent.-In an action under section 2326 of the United States Revised Statutes, to determine the right to a patent to mineral land, each party is held to be an actor, and each must establish his claim against the government, as well as against his adversary. Each party must allege, in his pleading, all the facts essential to the validity of his claim, as, for example, the citizenship of the locators, the steps necessary to constitute and maintain the location, etc.322 § 350. The same-Action to annul homestead.-A complaint in an action to annul an order setting apart a homestead to the widow of a deceased person out of his estate, which alleges that the property set apart was the separate property of the deceased, and that the widow, defendant in the action, 810 Hamilton v. Great Falls etc. Ry. Co., 17 Mont. 334, 42 Pac. 860, 43 Pac. 713. 320 Newton v. Hull, 90 Cal. 487, 27 Pac. 429. 321 Aurrecoechea v. Sinclair, 60 Cal. 532; Buckley v. Howe, 86 Cal. 596, 25 Pac. 132. 322 Anthony v. Jillson, 83 Cal. 296, 23 Pac. 419. Compare Milligan v. Savery, 6 Mont. 129, 9 Pac. 894. knowing that fact, and for the purpose of deceiving the court, falsely alleged and falsely swore that the property was community property, whereby the court was misled and deceived, and induced to make the order, does not state facts sufficient to constitute a cause of action.323 § 351. The same - Action against garnishee.-Allegations in a complaint against a garnishee, in an action by a judgment creditor, authorized in proceedings supplementary to execution against the judgment debtor, that the assignor of the plaintiff "recovered a judgment" in the superior court, "which judgment was duly entered," etc., and that the order authorizing the suit was "duly made," are sufficient as against a general demurrer. 824 § 352. The same-Specific performance. The absence of a certificate of acknowledgment upon a copy of a contract for the conveyance of land, attached to a complaint for the specific performance thereof as an exhibit, is not sufficient to show that the contract was not executed and acknowledged according to law, and where the complaint alleges that the plaintiff entered into a contract with the defendant, whereby he agreed to sell to the defendant, who agreed to purchase the land, such allegations will control, and imply the execution and acknowledgment of the contract according to law, for the purpose of supporting a judgment for specific performance of the contract.325 § 353. The same - Averments, probate of will, ownership.An averment in a pleading that a will was "probated by the superior court" is equivalent to an averment that the will was admitted to probate by the judgment of the superior court. And an averment that a given person was "during his lifetime" the owner of a piece of land is equivalent to an averment that he was the owner continuously throughout his lifetime.320 823 Fealey v. Fealey, 104 Cal. 354, 43 Am. St. Rep. 111, 38 Pac. 49. Compare Dunlap v. Steere, 92 Cal. 314, 27 Am. St. Rep. 143, 28 Pac. 563, 16 L. R. A. 361. 324 High v. Bank of Commerce, 95 Cal. 386, 29 Am. St. Rep. 121, 30 Pac. 556. 325 Banbury v. Arnold, 91 Cal. 606, 27 Pac. 934. 326 Riddell v. Harrell, 71 Cal. 254, 12 Pac. 67. § 354. The same - Dismissal for want of parties.-Under Oregon procedure, if it appears from the record that the real merits of the suit cannot be determined without essentially affecting the rights of persons in the subject-matter, who are not parties, and whose names nowhere appear in the record, the appellate court will refuse to examine the facts, but will dismiss the complaint for want of parties.327 § 355. The same Allegation negativing presumption of payment. In an action by a devisee to vacate a judgment for costs rendered against his testator, and an execution sale thereunder, an allegation of the complaint that neither the plaintiff nor his testator had any knowledge, notice, information, or belief that any judgment for costs had been entered, or that any cost-bill had been filed, or that any execution had been issued, or of any sale thereunder, or of any certificate or deed by the sheriff, is sufficient to negative any presumption that the sheriff had paid or tendered to the plaintiff's testator the excess of the proceeds arising from the execution sale.328 Α judgment upon which no execution has been issued for twenty years, in the absence of explanatory facts or evidence, is presumed to be paid. And in order to avoid objection by demurrer, the plaintiff must allege in his complaint the facts and circumstances on which he relies to rebut such presumption. 329 § 356. The same - Mining-claim contest.-An allegation of citizenship, or its equivalent, is necessary to constitute a good complaint in a proceeding to determine adverse mining claims preliminary to the issuance of a patent therefor.330 But, in an ordinary civil action for injuries to a mining claim, the plaintiff need not in the first instance allege his citizenship and compliance with the act of Congress for acquiring title to such claim, but he may make general averment of his title or possession, which is sufficient in an action against a wrongdoer 327 Beasley v. Shively, 20 Or. 508, 26 Pac. 846. 328 Riddell v. Harrell, 71 Cal. 254, 12 Pac. 67. Insufficient complaint in action to set aside judicial sale. See Russell v. Pew, 12 Mont. 509, 31 Pac. 75; Hudepohl v. Liberty Hill etc. Min. Co., 94 Cal. 588, 28 Am. St. Rep. 149, 29 Pac. 1025. 329 Beekman v. Hamlin, 20 Or. 352, 25 Pac. 672. 330 Keeler v. Trueman, 15 Colo. 143, 25 Pac. 311; Thomas v. Chisholm, 13 Colo. 105, 21 Pac. 1019; O'Reilly v. Campbell, 116 U. S. 418, 29 L. Ed. 669, 6 Sup. Ct. 421. |