Holton v. Sand Point Lumber Co.

• Decision Date: 23 April 1901
• Citation: 64 P. 889,7 Idaho 573
• Parties: HOLTON v. SAND POINT LUMBER COMPANY
• Court: Idaho Supreme Court

64 P. 889

7 Idaho 573

HOLTON v. SAND POINT LUMBER COMPANY

Supreme Court of Idaho

April 23, 1901

COMPLAINT-CAUSE OF ACTION.-If the complaint fails to state the essential facts constituting a cause of action, it is insufficient.

DEMURRER.-Where a suit is brought by a woman on an open account, and as a defense, the defendant sets up the facts that she is a married woman, and that the account sued on is community property, it is error to strike out such defense.

MARRIED WOMAN-ANSWER.-Where the fact does not appear on the face of the complaint that the plaintiff is a married woman, when if it did so appear the complaint would be open to a demurrer that fact may be taken advantage of by answer.

(Syllabus by the court.)

APPEAL from District Court, Kootenai County.

Reversed and remanded, with instructions. Costs awarded to the appellant.

Charles L. Heitman, for Appellant.

There is no statement of facts which could constitute a cause of action. There is no charge that the defendant is indebted to the plaintiff, but merely a recital "that the amount alleged to be due to plaintiff is on account of board furnished at the instance and request of defendant during the years of 1898 and 1899," and nowhere in the complaint is there an allegation of any amount due from defendant to plaintiff. "The forms alone of the several actions have been abolished by the statute. The substantial allegations of the complaint in a given case must be the same under our practice act as are required at common law." (Miller v. Van Tassel, 24 Cal. 463.) A pleading should contain a positive statement of essential facts, and it must be held insufficient where it merely states that such facts are alleged to exist. (Byington v. Commissioners, 37 Kan. 654, 16 P. 105.) It does not state that defendant promised to pay for the "board furnished," nor does it state the reasonable value of said "board furnished." (Mershon v. Randall, 4 Cal. 324; Green v. Palmer, 15 Cal. 411, 76 Am. Dec. 492; Joseph v. Holt, 37 Cal. 255.) The court erred in sustaining plaintiff's motion to strike out all of paragraph 5 of defendant's answer to the amended complaint, to the effect that the plaintiff herein is not the proper party plaintiff, she being at all the times mentioned in said complaint, and now is, a married women. (Idaho Rev Stats., sec. 4093.)

Edwin McBee, for Respondent.

The case was at issue and had been tried in the justice court and brought to the district court on an appeal by defendant. Plaintiff was forced to amend the complaint by inserting an allegation of the corporate existence of defendant. Defendant sought then for the first time to plead the coverture of plaintiff as a separate and second ground for defense to the action. By his failure to raise this question at an earlier period in these proceedings, defendant waived his right to such an objection. (10 Ency. of Pl. & Pr. 229; Simmons v Thomas, 43 Miss. 31, 5 Am. Rep. 470; Dillage v. Parks, 31 Barb. 132; Tapley v. Tapley, 10 Minn. 448, 88 Am. Dec. 76.)

SULLIVAN, J. Quarles, C. J., and Stockslager, J., concur.

OPINION

SULLIVAN, J.

This action was brought to recover fifty-six dollars and fifty-eight cents upon an account alleged to be due respondent for board furnished at the instance and request of defendant. An amended complaint was filed. The appellant, by his counsel, interposed a general demurrer to said amended complaint, and also on the ground that the amended complaint was unintelligible and uncertain in this, to wit, that it "does not charge any indebtedness to be due to the plaintiff from defendant, but is merely assumed or by way of recital." The demurrer was overruled, and the defendant answered, denying the material allegations of the complaint and averred as a defense that the plaintiff was a married woman, and was not the owner of the account sued on, and that said alleged account was community property, and as such was the property of George Holton, the husband of the plaintiff. On motion of counsel for plaintiff, said defense was stricken out. The cause was tried by the court and jury, and a verdict and judgment were rendered and entered in favor of the plaintiff. Appellant's motion for a new trial was thereafter...