Jenness v. Simpson

• Decision Date: 07 May 1908
• Citation: 81 Vt. 109,69 A. 646
• Court: Vermont Supreme Court
• Parties: JENNESS v. SIMPSON.

69 A. 646

81 Vt. 109

JENNESS

v. SIMPSON.

Supreme Court of Vermont. St. Johnsbury.

May 7, 1908.

Exceptions from Caledonia County Court; Willard W. Miles, Judge.

Case by Oliver H. Jenness against Walter Simpson for alienation of affections. Heard on demurrer to defendant's second plea setting up a contract between plaintiff and his wife in South Dakota, and relying on the law of that state. The demurrer was overruled, and plaintiff exempted. Judgment reversed, demurrer sustained, plea adjudged insufficient, and cause remanded.

Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

Howe & Hovey, for plaintiff. E. A. Cook, W. W. Reirden, and J. W. Redmond, for defendant.

WATSON, J. The demurrer is special, assigning two causes: First. "That the language in said plea, 'and the defendant avers that on September 24, 1906, for a long time previous thereto, ever since and now, it was and is the law of said state of South Dakota that a husband and his wife may legally contract with each other in the manner set forth in said contract'—is a conclusion of law." The second assignment, like the first, points to the allegation of the effect of the law of that state, and is with the same degree of particularity. It is said that, since the law of another state is regarded and treated in pleading as a matter of fact to be alleged and proved like any other fact, the conclusion of the pleader respecting it is one of fact and not "a conclusion of law" as stated in the assignments, and, it being a matter of form, the demurrant should be held strictly to the objection made. But, without considering whether the defect is one of form merely, we think the demurrant's characterization is not an erroneous one. When the law of a sister state is properly set forth in the pleading as a fact, then a question of law arises thereon as to the legal effect. Here, without setting forth the law, the pleader makes an averment of his conclusion of the legal effect, which is a conclusion of law. Kinnier v. Kinnier, 45 N. Y. 535, 6 Am. Rep. 132. See, also, McLeod v. Conn. & Pass. R. R. Co., 58 Vt. 727, 6 Atl. 648. It is a rule of pleading established beyond question that so much of the law of another state, or foreign country, as is material to the case must be set forth by the party complaining or defending under it, that the court may judge of its effect. Since the second plea is not a compliance with this rule, it is insufficient. Herring v. Selding, 2 Aik. 12; Peck v....