Munson v. Bowen
Before: Works
Synopsis
Pleading — Anticipating Defense — Ambiguity—General Demurrer. —A complaint which, after stating a good cause of action, proceeds to anticipate an expected defense, violates a plain rule of pleading, and is liable to a special demurrer for ambiguity and uncertainty; but the objection cannot be raised upon general demurrer.
Id. — Former Adjudication—■ Husband and Wife—Guaranty — Action on Notes — Demurrer.—A complaint by a married woman upon a guaranty of the defendant for the repayment to her and her husband of a portion of certain moneys invested by them in a business in which defendant is interested, showing that a previous action had been brought against the defendant by the plaintiff upon notes given by the defendant to the plaintiff for borrowed money, which was her separate property, and which notes were adjudged to have been paid by investment of the plaintiff’s money in the said business on the order of plaintiff’s husband, and averring further that no part of the money invested by the plaintiff had ever been refunded, and that her husband had assigned his rights to her, and seeking a judgment against the defendant on the guaranty, is not demurrable on the ground that the complaint shows a former adjudication against the plaintiff of the subject-matter of the present action.
Works, J. This is an action for the recovery of money. Demurrer to the complaint was overruled, and [574]the defendant failing to answer, judgment was rendered against him, and he appeals.
The appellant contends that the complaint was insufficient, and that the court below erred in overruling the demurrer thereto. The complaint, after stating a good cause of action, proceeded to anticipate an expected defense. By thus violating a plain rule of pleading, the pleader rendered his complaint uncertain and ambiguous. But we think it was good against the general demurrer that was interposed. The point made against it is that it shows a former adjudication of the question presented in this case, but we think that it does not.
Judgment affirmed.
Paterson, J., and Fox, J., concurred.
Hearing in Bank denied.
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