Judah v. Fredericks

Morrison, C. J.: This action is brought to recover a certain tract of land situate in the City and County of San Francisco, the allegation in the complaint being that the property in controversy was leased by one John Ferguson to the defendant. The complaint avers, that “ Maria B. Judah, of the City and County of San Francisco, plaintiff in the above-entitled action, complains of John Fredericks of said city and county, and for cause of action alleges : That she is the duly appointed, qualified, and acting executrix of the last will and testament of John Ferguson, de[391]ceased.” It then proceeds to set forth the lease from Ferguson to defendant, alleges that the same has expired, that notice to surrender the possession has been given in accordance with the provisions of the statute, and the unlawful withholding of the property by the defendant. To this complaint a general demurrer was filed by the defendant, which was overruled by the Court.

The question, and the only question which it will be necessary for the Court to consider, relates to the sufficiency of the complaint. If the complaint was defective in substance the demurrer should have been sustained, and the judgment entered upon it cannot stand.

The action is based upon a contract made with Ferguson, who, it is claimed, was the plaintiff’s testator, and consequently it was necessary for the plaintiff to bring the action in her representative capacity. The averment in the complaint is “ that she is the duly appointed, qualified, and acting executrix of the last will and testament of John Ferguson, deceased.” It is claimed, on behalf of the respondent, that this allegation is sufficient within § 456 of the Code of Civil Procedure. That section provides that “ in pleading a judgment or other determination of a court, officer, or board, it is not necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made.” Conceding, for the purposes of this decision, that the above provision is applicable to the case under consideration, yet the averments in the complaint are insufficient. In the case of Young v. Wright, 52 Cal. 410, the Court says: “But the answer avers that the judgment was ‘ duly rendered,’ and it is contended that this was sufficient, under § 456 of the Code of Civil Procedure. That section provides that, ‘ in pleading a judgment or other determination of a court, officer, or board, it is not necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made.’ A party wishing to avail himself of a provision of this character must comply strictly with its terms. In exonerating him from an obligation which would otherwise be incumbent upon him, the statute prescribes the precise conditions on which he is to be relieved, and they must be strictly performed. In this case the averment is not