Cal. C. Civ. P. ? 425.

2.

Cal. C. Civ. P. ? 426.

Corporate and representative capacity pleaded generally, 3000. On default, relief cannot exceed demand, 3179, 3187. Supplemental complaint,

2998.

For the purpose of pleading, only the ultimate fact to be proved need be stated. McAllister v. Kuhn, 96 U. S. 87; same case, 1 U. 273.

Complaint verified by attorney of non-resident plaintiff may allege that they are partners on information and belief. Thackera v. Reid, 1 U. 238. Allegations on information and belief are good. Flagstaff S. M. Co. v. Patrick, 2 U. 304.

In following cases complaints set out are held sufficient: For money had and received. Musser v. Meears, 8 U. 367; 31 P. 985. By adverse claimant against applicant for mineral patent. Campbell v. Taylor, 3 U. 325; 3 P. 445. In ejectment. Jones v. Memmott, 7 U 340; 26 P. 925. For equitable relief from fraud. Rasmussen v. McKnight, 3 U. 315; 3 P. 83; 4 P. 526. To set aside assignment and for receiver. Ottenberg v. Barnes, 10 U. 200; 37 P. 267. For receiver. U.S. v. The Church, 5 U. 361; 15 P. 473. Against stockholders of insolvent corporation for unpaid subscriptions. S. L. Hardware Co. v. Tintic Milling Co., 13 U. 423; 45 P. 200. Creditor's bill in equity. Enright v. Grant, 5 U. 334; 15 P. 268. For partnership accounting. Owen v. Oviatt, 4 U. 95; 6 P. 527. For injunction. Crane v. Winsor, 2 U. 248. If facts stated show plaintiff entitled to relief, it is sufficient. Kuhn v. McAllister, 1 U. 273.

A bond by a principal and surety was conditioned that the principal should pay to V all indebtedness existing or to exist upon the principal to V under existing or future contracts between him and V, and waived notice of non-payment on all notes executed, indorsed, or guarantied by the principal to V. In a suit on the bond against the obligors to recover the amount of notes executed by the principal to V and other notes indorsed and guarantied by him to V; held, that it was not necessary to allege or show any notice to the surety on a default by the principal in paying V. Murphy v. Victor Sewing Machine Co., 112 U. S. 688; same case, 2 U. 557, and 3 U. 152, 1 P. 470. Where a sewing machine company sold machines and attachments to a consignee, agreeing that the proceeds of the sale of machines beyond the commission should belong to the company, a complaint was held sufficient in a suit by the company against the consignee, which set forth schedules showing the retail prices of each machine sold as reported and the excess of money beyond the commissioned by the consignee and the price of each attent sold to the consignee. Streeper v. Victorving Machine Co., 112 U. S. 676; same case, 2 U. 657, and 3 U. 152, 1 P. 470.

A complaint which states that the plaintiff is in

[C. L. possession of real property and that the defendant claims an interest or estate therein adverse to him, is sufficient in that respect under the practice act of Utah, in an action brought to determine such adverse claim. Parley's Park Mining Co. v. Kerr, 130 U. S. 256; same case, 3 U. 235, 2 P. 709.

An allegation in the complaint that the plaintiff's injuries were sustained by the negligence of the defendant in supplying a defective brake, the defect which occasioned the injury, is an allegation of personal negligence of the defendant, and not an allegation of negligence of a servant or agent of defendant, from the mere fact that a corporation can act only by its servants and agents. Minter v. U. P. Ry. Co., 3 U. 500; 24 P. 911. In an action against a corporation by an employee for damages sustained by reason of negligence of the corporation, an allegation that charges the negligence to be that of the defendants is sufficient. Cramer v. U. P. Ry. Co., 3 U. 504; 24 P. 911.

The complaint set out in the case; held, to contain allegations of fraud sufficiently specific, and to state facts sufficient to constitute a cause of action. Price v. Utah and Pleasant Valley Ry. Co., 4 U. 72; 6 P. 528.

The complaint set forth, and held that the application for an injunction was too broad to be met by a general demurrer. Linck v. Salt Lake City, 6 U. 109; 21 P. 459.

In

The complaint of a sub-contractor upon his lien should allege the amount of the contract with the owner, less any payment for labor performed and materials furnished before the sub-contractor began work. Teahen v. Nelson, 6 U. 363; 23 P. 764. an action by a sub-contractor to foreclose a mechanic's lien, where the original contract is not of record, it is not necessary in the pleadings to allege the exact amount of the contract, nor is a sub-contractor required to make a positive averment of the payments made on the original contract, changing the ruling laid down in Teahen v. Nelson, 6 U. 363; 23 P. 764. Morrison v. Gamble, 14 U. 201; 46 P. 1104.

When the caption of the complaint gives the title of the corporation with the addition "a corporation under the laws of the state of Iowa," the averment of corporate capacity is sufficient. Saunders v. Sioux City Nursery, 6 U. 431; 24 P. 532.

The complaint alleged that the defendants trespassed upon the property of plaintiff of which she was in lawful possession; held, that trespass lay against the defendants entering forcibly, where the complaint alleged lawful possession. Marks v. Sullivan, 8 U. 406; 32 P. 668.

In a suit brought by the United States to dissolve the Mormon church and dispose of its property, the question as to whether or not the real estate men

tioned in the pleadings was subject to forfeiture under the law of 1862 and the Edmunds-Tucker law was not involved or adjudicated. United States v. Gardo House, 9 U. 285; 34 P. 59.

In an action by a creditor to set aside conveyance as fraudulent and void, the insolvency of the grantor at the time of the conveyance need not be alleged. Ogden State Bank v. Barker, 12 U. 13; 40 P. 765. An expressed allegation of the insolyency of defendant in an action to set aside a fraudulent conveyance, is not necessary where it may be inferred from the whole bill. Id. He who relies upon fraud must aver and prove it. Deseret Nat. Bank v. Little, Roundy & Co., 13 U. 265; 44 P. 930.

A cause of action, based on the allegation that plaintiff was not informed of the dissolution of a firm to which defendant belonged, is, in fact, based on an estoppel in pais, and hence the facts constituting the estoppel should be pleaded. Homberger v. Alexander, 11 U. 363; 40 P. 260.

Where the complaint seeks to charge defendants as executors de son tort, an allegation therein of the presentation of the claim will be regarded as surplusage. First National Bank of Hailey v. Lewis, 12 U. 84; 41 P. 712.

In an action to reach unpaid subscriptions of stockholders, it is permissible to allege the fact of the insolvency of a corporation and other facts showing that execution could not be collected, and it is not necessary to wait until a judgment has been obtained against such corporation and execution returned nulla bona, and to allege such facts. S. L. Hardware Co. v. Tintic Milling Co., - U.; 45 P. 200.

A contract may be set out in hæc verba or annexed by proper reference; preliminary or collateral matters of substance must be averred, so that the ultimate facts for which it was incorporated will be clearly presented; and if the instrument should be defective or ambiguous it is incumbent upon the

pleader to place upon it some construction by proper allegation, otherwise demurrer will lie. Stephens v. Am. Fire Ins. Co., 14 U. 265; 47 P. 83. Affirmed, 14 U. 272; 46 P. 1118.

Where complaint contains an averment that defendant company refused to pay a loss and disclaimed liability, an allegation that proof of loss was furnished or notice given pursuant to the policy is not necessary. Id.

Defect in complaint held cured by verdict hereunder. Harkness v. McClain, 8 U. 52; 29 P. 964. Complaint alleging that due and legal notice of dishonor and non-payment was given an indorser, is sufficient. Smith v. McEvoy, 8 U. 58; 29 P. 1030. In these cases complaint held insuflicient: On non-negotiable note. Felt v. Judd, 3 U. 414; 4 P. 243. Upon bail bond. People v. Solomon, 5 U. 277; 15 P. 4. In foreclosure. Hussey v. Smith, 1 U. 241.

Complaint by officer in his official capacity should show same. Hamilton v. Spiers, 2 U. 225. Where the plaintiffs sought to recover for being unlawfully deprived of their right to be registered as voters, they must allege that they were legally qualified voters, or, that allegation being omitted, must allege all the facts necessary to show as matter of law that they were qualified voters, and to this end it is necessary that they should negative all the disqualifications pronounced by the law. Murphy v. Ramsey, 114 U. S. 15. In an action against executors de son tort, the complaint must charge them as executors generally. First National Bank v. Lewis, 12 U. 84; 41 P. 712. The common count "for goods sold," is defective under the code, where it does not state a delivery or a promise to pay. Kilpatrick-Koch Dry Goods Co. v. Box, 13 U. 494; 45 P. 629,

The defect in a complaint in failing to allege notice of protest and non-suit, where the answer alleges want of notice of protest and nonsuit, is cured by verdict. Harkness v. McClain, 8 U. 52; 29 P. 964.

out of:

Cal. C. Civ. P. 427; Kan. 4166; Wis. ? 2647. Plaintiff may recover on one of two counts in a complaint though not entitled thereto on the other. Firman v. Bateman, 2 U. 268. Where complaint contains two counts for same cause of action plaintiff may he compelled to elect on which he relies. Anthony v. Savage, 2 U. 466. See also Johnson v. Meaghr, U. -; 47 P. 861.

Sec. 3220, C. L. 1888, construed, and Potter v. Hussey, 1 Ú. 249; Houtz v. Gisborn, 1 U. 173; and Folsom v. McLaughlin, 1 U. 178, cited, approved, and distinguished. Ferguson v. Burt, 2 U. 388. In a creditor's bill brought by plaintiffs, two of

whom were partners and alleged a judgment, issue of execution and return wholly unsatisfied, and the other plaintiff alleged a judgment, and both alleged certain property of defendant to be held by defendant's wife for defendant on a secret trust, and that defendant had no other property known to plaintills out of which an execution could be satisfied; held, that this was a sufficient allegation of insolvency as to all the plaintiffs, and that there was no misjoinder of causes of action. Enright v. Grant, 5 U. 334; 15 P. 268. Under sec. 3220, C. L. 1888, the plaintiff may unite two causes of action each for the killing of the same horse, charged in differ

ent ways. Jensen v. U. P. Ry. Co., 6 U. 253; 21 P. 994. A plaintiff cannot, in the same count, rely upon two or more distinct matters, each amounting individually to a good cause of action. Johnston v. Meaghr, 14 U. 426; 47 P. 861. A plaintiff cannot, in one count, rely upon false imprisonment and malicious prosecution. Id. Causes of action for specific

performance and on contract to pay money, cannot be united. Ferguson v. Burt, 2 U. 388. Maker and indorser of note secured by mortgage may be joined without stating separate causes of action against each. Smith v. McEvoy, 8 U. 58; 29 P. 1030.

The defendant may

2.

same cause; or,

4.

6.

Cal. C. Civ. P. 430.

Time to answer or demur may be extended, ?? 3005, 3329.

Allegations on information and belief do not make complaint demurrable. Thackara v. Reid, 1 U. 238. Surplusage in a complaint is no ground of demurrer. Campbell v. Taylor, 3 U. 325; 3 P. 445.

SUBDV. 2. Legal capacity to sue is an ordinary incident to a corporation, and where corporate existence is alleged by a corporation plaintiff, objections that it has not legal capacity to sue or is not such corporation cannot be taken by demurrer. Crane Bros. Mfg. Co. v. Reed, 3 U. 506; 24 P. 1056. SUBDV.3. Pendency of former action is a bar. Davis v. Flagstaff S. M. Co. 2 U. 74. Judgment recovered by party to whom promissory note has been assigned for purpose of suing thereon, is bar to another action thereon by assignor. Anderson v. Yosemite M'g. Co., 9 U. 420; 35 P. 502. Where in such case first action was against only one of several parties liable thereon, the others may still avail themselves of it as a bar to action brought by assignor. Id.

SUBDV. 4. In action for a tract of land, plaintiff cannot join several defendants who are in possession and claim distinct and separate parcels thereof. Moore v. Wilson, 1 U. 187. It is a misjoinder for the collector to join the county with him as co-plaintiff, in a suit for taxes. Crismon v. Reich, 2 U. 111. County and territory cannot sue together on a collector's bond for separate sums due each. Salt Lake Co. v. Golding, 2 U. 319. An executor cannot be joined with the devisee as co-plaintiff in an action to declare and enforce a trust in favor of such devisee; he has no right to such title or trust, and no interest therein. Raleigh v. Hulet, 2 U. 122. Under facts set out; held, that the bringing in of a third party was error. land v. McMartin, 8 U. 150; 30 P. 365. A mining company which is liable upon a contract cannot complain because its manager is improperly joined as a party defendant, in an action for a breach of the contract. Ruffatti v. Société Des Mines, 10

Gar

U. 386; 37 P. 591. Where two officers as individuals were joined with the defendant corporation in an action for specific performance; held, that there was a misjoinder. Whitehill v. Lowe, 10 U. 419; 37 P. 589.

A

SUBDV. 5. A failure to demur specially to a misjoinder of causes of action is a waiver of the objection. Wenner v. Smith, 4 U. 238; 9 P. 293. complaint in an action to set aside a fraudulent assignment, and for the appointment of a receiver examined, and held not to be demurrable. Ottenberg v. Barnes, 10 U. 200; 37 P. 267.

SUBDV. 6. Complaint containing one good count is not subject to general demurrer. Potter v. Hussey, 1 U. 219. Nor is answer containing one good defense. Groesbeck v. Bell, 1 U. 338. Defense of statute of limitations may be taken by demurrer. Burnes v. Crane, 1 U. 179. Joint demurrer of two defendants should be overruled if complaint states a cause of action against either. Walker v. Popper, 2 U. 96. In an action upon a bail bond, an allegation that defendant was admitted to bail is not an allegation that defendant was released from custody, and a demurrer to the complaint shuold be sustained. People v. Solomon, 5 U. 277; 15 P. 4. Where an action is brought under section 3308, subdivision 5, C. L. 1888, and an attachment is issued, the complaint which shows on its face that the debt is not yet due, but does not allege any acts of fraud, is demurrable. Selz, Schwab & Co. v. Tucker, 10 U. 132; 37 P. 249. Objection that complaint does not state cause of action may be taken for the first time in appellate court. Holt v. Pearson, 12 U. 63; 41 P. 561. But see Voorhees v. Manti City, 13 U. 435; 45 P. 564, modifying Holt v. Pearson. Where defendant relies upon statute of limitations in his demurrer he should point it out specifically. Thomas v. Glendinning, 13 U. 47; 44 P. 652.

SUBDV. 7. A complaint is not ambiguous by reason of the single fact that allegations are made on information. Thackara, Buck & Co. v. Reid, 1 U. 238. Demurrer that complaint is "multifarious

Mont. Civ. P. 2 690; N. Y. Civ. P. ? 500; Wis., S. & B. An. S. 2655; Cal. C. Civ. P. 437.

Answer in garnishment proceedings, 223097-3099. Where answer controverts in part, plaintiff may take judgment by default for undisputed portion, 23180. Extension of time to answer, 22 3005, 3329. Supplemental answer, 22998. Verification, 229832985. Material allegations of complaint taken as true if not controverted, 2 2996. Time to answer after demurrer overruled runs from service of notice, exception, 3009. Time to answer complaint, 2939. Defendant interposing counterclaim entitled to provisional remedies, 3123. Defendant entitled to affirmative relief must demand it, 2975. Order to make counterclaim a separate action, ?

2973.

"Defendant is informed and believes that the time of payment of said note was extended," etc., is not a sufficient allegation of the fact of extension. Baskin v. Godbe, 1 U. 28. Denial in language of complaint is bad. Rock Springs Coal Co. v. Salt Lake Sanitarium Ass'n, 7 U. 158; 25 P. 742. Conway v. Clinton, 1 U. 215. Sufficiency of denial, see decisions under 2 2996. The form of the denials in an answer is not material; it is sufficient if the denials meet and traverse the allegations of the complaint. Morrison v. O'Reilly, 2 U. 165. Estoppel in pais relied on as defense in ejectment must be pleaded. Poynter v. Chipman, 8 U. 442; 32 P. 690. Duke v. Griffith, 9 U. 469; 35 P. 512. In an answer justifying seizure under attachment of property in hands of and claimed by a third person, the proceedings should be averred, since no intendment of regularity can be indulged. Jones v. McQueen, 13 U. 178; 45 P. 202. Where the promise or agreement is alleged generally, the court will not assume upon demurrer that it was not in writing. In that case, the burden is thrown on the defendant to allege that it was not in writing. Kilpatrick-Koch Dry Goods Co. v. Box, 13 U. 492;

45 P. 629. The denial of the authority of a representative under a will, upon information and belief, is insufficient. Thompson v. Skeen, 14 U. 209; 46 P. 1103.

An answer in a mandamus proceeding alleging "that defendant had fully passed upon said returns and canvassed the same," is simply a statement of a legal conclusion, and tenders no material issue. Lyman v. Martin, 2 U. 136. An answer setting up a defense to a promissory note which alleges that "the plaintiff is not an innocent holder for value of said note," and "that said note was wrongfully and fraudulently obtained from one indorser by another indorser and in fraud of the rights of the payee," etc., are statements of legal conclusions only and are insufficient to authorize the admission of testimony. Voorhees v. Fisher, 9 U. 303; 34 P. 64. See Hussey v. Smith, 1 U. 241.

Defense of contributory negligence should be affirmatively pleaded; but need not be where plaintiff's evidence shows it. Bunnell v. Rio Grande W. Ry. Co., 13 U. 314; 44 P. 927. Contributory negligence is an affirmative defense, and should be pleaded in the answer. Andreson v. Ogden Union Ry. Co., 8 U. 128; 30 P. 305.

Where the complaint asks that defendant be required to set forth their adverse claim, and the defendant in answering sets up the agreement upon which they base their rights, and pray that their rights as shown by the allegations in their answer may be decreed to them, the court may grant an affirmative decree without a cross-complaint. Brighton & N. P. Irr. Co. v. Little, 14 U. 42; 46 P. 268.

If answer is insufficient, plaintiff is entitled to judgment on the pleadings. Smith v. Faust, 1 U. 90. And no findings are necessary. Dickert v. Weise, 2 U. 350. But this right is waived, if not claimed till after verdict. Smith v. Faust, 1 U. 90. Firman v. Bateman, 2 U. 268.

·ན

Cal. C. Civ. P. 2 438.

In an action at law, the defendant cannot set up a defense in tort, when the tort does not grow out of the cause of action sued on. Zeile v. Moritz, 1 U. 283. In action by person who has been forcibly

ejected from land, for an injunction and damages, defendant cannot counterclaim damages caused by plaintiff in regaining possession several days afterward. Marks v. Tompkins, 7 U. 421; 27 P. 6.

Cal. C. Civ. P. 2 439.