People ex rel. Kern v. McIntyre

10 Mont. 166

• Court: Montana Supreme Court
• Decided: July 15, 1890
• Status: Published

Opinion

De Witt, J.

The contention of the parties herein is upon the action of the court in overruling the demurrer.

The first point in the demurrer is abandoned upon the argument, and we shall not discuss it.

As to the second point. The prayer of the complaint is dual, as allowed by the statute (ch. v. tit. x. Code Civ. Proc.) ; that is, (1) that defendant be excluded from the office; and (2) that relator be adjudged to be entitled thereto. The prayer is based upon the statement of two facts in the complaint (1) relator’s right to the office; and (2) defendant’s usurpation of the office. The demurrer is a unit, and, therefore, if any cause of action is set forth in the complaint, that pleading is good. If the usurpation by the defendant is sufficiently stated, the complaint must stand, whether the rights of the relator are well pleaded or not. That this complaint is good upon demurrer is abundantly sustained in People v. Woodbury, 14 Cal. 43; Flynn v. Abbott, 16 Cal. 359; People v. Holden, 28 Cal. 124; State v. Messmore, 14 Wis. 125; State v. Price, 50 Ala. 568; People v. Ryder, 12 N. Y. 433; 16 Barb. 370; Territory v. Rodgers, 1 Mont. 252; 2 Estee’s Pleadings and Practice (3d ed.), §§ 2902-2918, cases cited; 3 Deering’s Codes of California, § 802, et seq., cases cited. Appellant has not cited us to any authorities, nor do we find any holding a contrary view.

What may or may not be the valid objections to the style or title of the case we cannot inquire under the third point of the demurrer as set forth. There is no demurrer “that plaintiff has no equal capacity to sue.” (§ 87, Code Civ. Proc.) The ground of demurrer, as stated by defendant, is not known to the statute. The judgment is affirmed.

Blake, C. J., and Harwood, J., concur.