Al v. Le Beau

• Decision Date: 15 February 1897
• Citation: 19 Mont. 223
• Parties: KNIGHT at al. v. LE BEAU.
• Court: Montana Supreme Court

19 Mont. 223

KNIGHT at al.

v.LE BEAU.

Supreme Court of Montana.

Feb. 15, 1897.

Appeal from district court, Gallatin county; F. K. Armstrong, Judge.

Action by J. A. Knight and another, as administrators with the will annexed of the estate of George Henry Godwin, deceased, against Peters Le Beau. From a judgment for plaintiffs on the pleadings, defendant appeals. Affirmed.

The plaintiffs' complaint in this action is as follows: “The plaintiffs complain of the defendant, and allege: First. That on the 25th day of November, 1895, the plaintiffs were duly and legally appointed administrators with the will annexed of the estate of George H. Godwin, deceased, and that on the 12th day of December, 1895, they duly qualified as such administrators, and letters of administration with the will annexed, of said estate, were duly and legally issued to them and each of them; and that they and each of them have ever since been, and now are, the duly and legally appointed, qualified, and acting administrators with the will annexed of the estate of George Henry Godwin, deceased. Second. That on the 2d day of January, 1893, at Park Ranch, Cherry Creek, Madison county, Montana, the defendant made, executed, and delivered to the said George Henry Godwin his promissory note in writing, bearing date on that day, which promissory note reads in words and figures following, to wit: ‘$500. Park Ranch, Cherry Creek, Madison Co., Montana, January 2d, 1893. One day after date I promise to pay Geo. H. Godwin or order, for value received, five hundred dollars, with interest at ten per cent. per annum both before and after maturity. January 2d, 1893. P. Le Beau.’ Third. That, at the time of the appointment of plaintiffs as administrators with the will annexed of said estate as aforesaid, said note was a part of the assets of said estate, and the property thereof, and the same came into the hands of these plaintiffs, as administrators aforesaid, as the property of said estate; and plaintiffs have ever since been, and now are, the lawful owners and holders of said promissory note. Fourth. That the defendant has not paid said note, or any part thereof, or any interest thereon, but that the principal sum mentioned in said note, with interest thereon at the rate of ten per cent. per annum from the 2d day of January, 1893, is now wholly due and unpaid, and justly owing from defendant to plaintiffs, as administrators aforesaid. Wherefore plaintiffs pray for judgment against the defendant for the sum of $500, with interest at the rate of 10 per cent. per annum from the 2d day of January, 1893, together with all costs of this action, and for all other proper relief.” To this complaint the following demurrer was filed: “Comes now the defendant in the above-entitled action, and demurs to the complaint therein on the following grounds: First. The complaint does not state facts sufficient to constitute a cause of action. Second. The court has no jurisdiction of the subject of the action. Third. The said complaint is unintelligible and uncertain in the following particulars: (1) It cannot be ascertained from said complaint when or where said George H. Godwin died. (2) It cannot be ascertained from said complaint when or by what means said cause of action accrued to plaintiffs, if ever.” The demurrer was overruled, and, the defendant declining to answer, judgment was rendered in favor of plaintiffs as prayed for. The appeal is from the judgment.

Luce & Luce, for appellant.

Hartman Bros. & Stewart, for respondents.

BUCK, J. (after stating the facts).

We have before us in this appeal able and elaborate briefs on interesting questions of pleading, and have given the arguments of respective counsel the most careful consideration. Does the complaint state a cause of action? We think it does. It is true that the averments as to the legal capacity of plaintiffs to sue are very defective. Properly, the pleading should have shown by direct averment that Godwin died leaving a will; that a court of this state (naming it) duly made orders admitting said will to probate, and issuing letters of administration with the will annexed to plaintiffs. See 1 Estee, Pl. & Prac. § 419. Section 745, Code Civ. Proc. 1895, is as follows: “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. If such allegation be controverted, the party pleading must establish on the trial the facts conferring jurisdiction.” Under the old common-law rule, in pleading an order of an inferior court, the jurisdictional facts preceding it had to be set forth. Section 745, supra,has changed the old rule, but certainly was not designed to countenance the careless omissions we have mentioned. We strenuously condemn such laxity in pleading. See Halleck v. Mixer, 16 Cal. 574;Bird v. Cotton, 57 Mo. 568. One of the specific grounds for demurrer designated in section 680 of our Code of Civil Procedure of 1895 is “that the plaintiff has not legal capacity to sue.” Of course, under said last-named section, a demurrer on this ground lies only when the legal incapacity appears on the face of the complaint. See Importing Co. v. Hogan, 16 Mont. 384, 41 Pac. 135. But a demurrer on the ground of want of legal capacity is something entirely distinct from one which raises the objection that a complaint does not state facts sufficient to constitute a cause of action. When one of these two separate grounds is the basis of a demurrer, the other cannot be considered. See Pom. Rem. (2d Ed.) § 208; Insurance Co. v. Baldwin, 37 N. Y. 648;Bank v. Donnell, 40 N. Y. 410;Debolt v. Carter, 31 Ind. 355;Commission Co. v. Poole (S. C.) 19 S. E. 203;Mora v. Le Roy, 58 Cal. 8;Phillips v. Goldtree, 74 Cal. 151, 13 Pac. 313, and 15 Pac. 451;Miller v. Luco, 80 Cal. 257,...