Miller v. Abrahamson

SHAW, J.

Appeal by defendant upon the judgment-roll.

The ground upon which a reversal is urged is the alleged error of the court in overruling defendant’s general demurrer to the first count of the complaint. The pleading, instead of stating the facts constituting the cause of action based thereon, is in the common-law form of a declaration in

indebitatus

assumpsit, alleging “that defendant is indebted to plaintiff in the sum of $622.10, for money had and received by defendant to the use of the plaintiff and L. P. Laursen within two years last past.” Appellant contends

[397]

that this form of pleading is inconsistent with the provision of the code requiring the plaintiff to state the facts constituting the cause of action. At an early date in this state

(Freeborn

v.

Glazer,

10 Cal. 337), this identical question was made the subject of judicial expression by our supreme court, which then held that a complaint for money had and received in the language here used was sufficient. In discussing a like objection presented in

Pleasant

v.

Samuels,

114 Cal. 34, [45 Pac. 998], the court says: “The objection that the common counts are inconsistent with the provision of the code that a complaint must state the facts constituting the cause of action in ordinary and concise language, and are therefore insufficient, is not tenable. It was held in this state at an early day, and has since been repeatedly held, that the common counts may be used to state a cause of action, notwithstanding the provision referred to, which was found in the old statutes and was adopted into the code (citing cases); and this rule has been recognized and acted upon in most of the states where the code practice has been adopted.” (See, also,

Abadie