Hentsch v. Porter
Before: Burnett, Field
Synopsis
There are six causes for which a demurrer may be interposed, under section forty of the Code, and unless a ground of demurrer be included under one or more of such causes, it can not be sustained.
A default admits only the facts alleged in the complaint.
A defective allegation of a fact may be cured by default or verdict ,* but not so the entire absence of any allegation whatsoever.
The non-presentation of a claim against the estate of a deceased person, to the administrator, will not deprive the District Court of jurisdiction over such claim.
The failure of the plaintiff to allege in his complaint in a suit on such claim, its presentation to and rejection by the administrator, is an objection that the complaint does not state facts sufficient to constitute a cause of action.
But the cause of action mentioned in the Code is a present subsisting cause of action, entitling the plaintiff to judgment at the time the action was commenced.
A defect which will defeat the plaintiff’s present right to recover, in whole or in part, is a good ground of demurrer.
The non-presentation of the claim to the -administrator is, in its nature and effect, nothing more than a matter of abatement. It defeats only the plaintiff’s present right to recover, and such an objection to the complaint must be made for the first time in the Court below.
An objection to the complaint that defeats only plaintiff’s present right to recover, must be made in the Court of original jurisdiction, during the term at which the judgment is rendered. But when the defects are of such a serious character as 'to show that plaintiff could not, at any time, obtain any judgment upon the cause of action alleged, then the objection may be made for the first time in the Appellate Court.
On re~heariny.—Where an administrator does not set up his privileges -by demurrer or answer, but suffers judgment to go by default, it is a confession that he is properly sued.
Wherever the subject-matter of the plea or defence is, that the plaintiff can not maintain any action at any time, whether present dr future, in respect of the supposed cause of action, it may, and usually must, be pleaded in bar; but matter which merely defeats the present proceeding, and does not show that the plaintiff is forever concluded, should, in general, be pleaded in abatement.
This Court will presume in favor of sustaining the judgment of the District Court, that proof was made of the disallowance of the claim by the administrator, which supplied the want of the averment to that effect.
Opinion — Burnett
Burnett, J., delivered the opinion of the Court. This was a bill to foreclose a mortgage against the defendant, administrator of Lyman Mowry, deceased, Mary A. Mowry, his widow, and L. Sawyer, who claimed some interest in the mortgaged premises. The defendants were regularly served, and made default, and a decree was taken for a sale of the mortgaged premises, and a judgment over against the administrator for the deficiency, if any, and for costs. From this decree, the defendants appealed.
The learned counsel for the defendants rely upon the fact that there is no allegation in the complaint that the claim was presented to the administrator, and rejected by him before the com[558]mencement of this suit, and they insist that this defect is not cured by the default of the defendants.
In support of their position, the learned counsel for the defendants rely upon the decision of this Court in the case of Ellissen v. Halleck and others, (6 Cal. Rep., 386.) In that case, the plaintiff prayed judgment for the sale of the mortgaged premises, and a judgment over against the executors for the deficiency and for costs. To the complaint, the defendants demurred upon two grounds : first, that the Court had no jurisdiction, either of the persons of defendants or of the subject-matter; and, second, that the complaint did not state facts sufficient to constitute a cause of action. This demurrer was sustained by the District Court, and the judgment was affirmed in this Court, on appeal. The defect in the complaint, in that' case, was the same as the defect in this.
As, by section thirty-seven, all the forms of pleadings, and the rules by which their sufficiency shall be determined, are those prescribed by the Code, we must first look to it to solve all difficulties of this character. (Mayhew v. Robinson, 10 How. Pr. R., 166.) There are six causes for which a demurrer may he interposed, under section forty of the Code; and, unless the-alleged defect can be included under one or more of these, a demurrer can not be sustained. (Richards v. Edick, 17 Barb. S. C. Rep., 262.) It must be conceded that, if the failure to allege the presentation and rejection of the claim be demurrable at all, it must fall under the objection, either to the jurisdiction of the Court, or that the complaint does not state facts sufficient to constitute a cause of action. It can not be classed with any of the other causes of demurrer mentioned, in the section. It would also seem to he true, that if the presentation and rejection of the claim be a condition precedent to bringing the suit, the fact must be affirmatively alleged in the complaint. The fact, from its nature, is one which the plaintiff must prove, if denied. The defendant could not be expected to prove a negative, To enable the defendant to deny the fact, it must be affirmatively alleged in the complaint. Under section forty-six, the-answer can only contain two classes of.defences : first, a denial of the allegations of the complaint; and, second, a statement of any new matter constituting a defence. This new matter is affirmative, and the onus of proof to sustain it is thrown upon the defendant. (May-hew v. Robinson, 10 Howard’s Prac. Rep., 166.)
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