Miles v. McDermott

By the Court, Sanderson, J.: Action for a street assessment. .It comes here upon a demurrer to the complaint.

The first point is that the resolution of intention was not published for a period of ten secular days before the resolution directing the work to be done was passed, and that, therefore, the Board of Supervisors had acquired no jurisdiction in the premises at the time the latter resolution was adopted.

The point is not good. The same question arose in Taylor v. Palmer, ante, p. 240. We there held that intervening Sundays are to be counted in the computation of the ten days during which publication of the notice of intention is directed to be made.

It is next claimed that the complaint is fatally defective because its averments, as alleged, are in many respects conclusions of law rather than issuable facts.

This point rests upon the ground that the complaint in some instances avers that the act, with which it is at the time dealing, was “ duly ” performed, instead of simply averring that it was performed. A single example is sufficient to illustrate the ground of the objection and our'views in relation to , [273]it. The allegation in relation to the passage of the resolution of intention is as follows: “ That on the 22d day of January, 1866, the Board of Supervisors of said city and county, deeming it expedient, duly made and passed a resolution,” etc. It is claimed that this allegation presents a conclusion of law instead of an issuable fact, and that the pleader ought to have alleged the facts which show that the resolution was passed.

The ultimate or issuable fact in this connection is that the resolution was passed, and is therefore the only fact which the pleader is called upon to allege. The facts or acts which lie behind and transpired before or while the resolution was being-passed are probative, and not only need not be alleged, but ought not to be alleged. If this were otherwise, every pleading would be compounded of ultimate facts or allegations, and the evidence of them in detail. Probative facts have no place in a pleading, and will be stricken out on motion. Omit the word “ duly ” from the allegation in question, and all cause for criticism is removed. Such words as “ duly,” “ wrongfully” and “unlawfully,” so frequently used in pleadings, might better be omitted. They tender no issue, and serve only to detract from that logical directness and simplicity of statement which ought always to be observed in a pleading. But while they do no good, and should not be used for the reason suggested, they do not vitiate the pleading, for they are but surplusage, and may be disregarded.