Brown v. Martin et als.

II. It is next claimed that under a demurrer which merely states in general terms that the complaint does not state facts sufficient to constitute a cause of action, the defense of the Statute of Limitations may be made. The late Supreme Court held, in several cases, that the defense of the Statute of Limitations could be interposed by demurrer, and the ground of the decision was, that the pleadings under our system more nearly assimilate equity than common law pleadings under the former system, and that in equity the defense of the Statute of Limitations could be made by demurrer. In a demurrer to a bill in equity, under the former system, it was usual to state, in addition to the cause of demurrer, the particular grounds upon which the alleged cause was based; and if the Statute of Limitations was relied on as a cause of demurrer, it had to be specially so stated. Nor could the aid of the Statute of Limitations be invoked by demurrer unless it appeared upon the face of the bill that the cause of action was barred. form of demurrer under the old chancery system runs thus: "This defendant doth demur in law to the said bill, and for cause of demurrer showeth that it appears by the said bill that, etc."— stating the ground upon which the defendant relies.

The

It was undoubtedly the design of the framers of the new system to make the pleadings conform, so far as possible, to the old chancery, rather than the common law forms, for the obvious reason that the former are better adapted to the new system, which requires the pleader to state the facts constituting his cause of action or defense in ordinary and concise language. (Practice Act, sections thirty-nine and forty-six.) This design is further apparent from the fortieth, forty-first, and forty-fourth sections of the Practice Act. The fortieth states the several causes for which the defendant may demur, provided they appear upon the face of the complaint. If they do not appear upon the face of the complaint the forty-fourth section provides that they may be stated in the answer. But whether stated in the demurrer or in the answer, the fortyfirst section provides how they shall be stated, and requires

Brown v. Martin et als.

the grounds, not the causes or objections, to be distinctly specified. Whether the causes of demurrer enumerated in section forty are assigned in a demurrer or in an answer, their legal character is the same, and they are matters of demurrer strictly. Dilatory pleas, eo nomine, are unknown to our system. Such pleas are, in our system, made causes of demurrer, and when relied on the grounds upon which they are founded must be distinctly stated, without regard to where or in what pleading the objection is interposed. That is to say, when a cause of demurrer is assigned, the reason or the ground of it must also be stated. For example: "The defendant demurs to the complaint for the following causes appearing upon the face thereof, to wit: First-The Court has no jurisdiction of the subject matter of the action, because the amount in controversy is less than three hundred dollars, to wit: one hundred dollars. Second-The plaintiff has not legal capacity to sue, because he is less than twenty-one years of age, to wit: eighteen years. Third-The complaint does not state facts sufficient to constitute a cause of action, because the cause of action therein alleged has not accrued within five years next preceding the filing of said complaint." Such is the form of demurrer contemplated by our system of pleading, and such was the usual, though, perhaps, not always absolutely necessary form in the old chancery practice. To the extent of making it absolutely necessary, our system has improved on the old, by providing that the demurrer may be disregarded unless the grounds are specified as above.

The forty-fifth section provides that unless the causes of demurrer are assigned in the foregoing manner, either by demurrer or answer, they shall be deemed waived, except the objection to the jurisdiction of the Court, and the objection that the complaint does not state facts sufficient to constitute a cause of action. These excepted objections may, therefore, be made at any stage of the proceedings; but when made, they are to be made in the manner and form prescribed by the forty-first section, for that section refers to all causes of demurrer, and makes exception in favor of none. These two objec

Brown v. Martin et als.

tions may be taken in limine, or in support of a motion for a nonsuit, or in arrest of judgment, or on appeal; but whenever taken, and wherever taken, they should be taken as provided in sections forty and forty-four; and the grounds of the objection should be stated, as provided in section forty-one, under penalty of being disregarded as therein provided.

The forty-first section reads as follows:

"SEC. 41. The demurrer shall distinctly specify the grounds upon which any of the objections to the complaint are taken. Unless it do so it may be disregarded."

We are aware that the foregoing section has been practically ignored heretofore, and it has been held sufficient to state the causes of demurrer, in the general terms prescribed in the fortieth section. Admitting that a rule of practice, so long followed and sanctioned by the Courts, ought not to be disturbed, we still think that it should be restricted in its operation, rather than extended. To say the least, the last clause in the forty-first section places it in the discretion of the Court to say whether a demurrer which does not distinctly specify the grounds of the objection shall be disregarded. Therefore, in view of the practice which has prevailed heretofore, we do not hold that it is necessary to specify the grounds of the objections in all cases, but we do hold that if it is not done it is in the discretion of the Court to disregard the demurrer; and this Court will not entertain a question on demurrer founded upon the Statute of Limitations, unless the statute be distinctly stated in the demurrer, and unless that demurrer be interposed in the Court below.

In conclusion, we recommend to the profession the practice suggested in this opinion.

Judgment affirmed.

Mr. Justice SAWYER delivered the following dissenting opinion, in which Mr. Justice SHAFTER concurred.

While we admit that the law ought to require a party who

Brown v. Martin et als.

relies upon the Statute of Limitations to specifically point out this objection in his demurrer, we feel compelled to dissent from the conclusion reached in the second point of the prevailing opinion in this case, on the ground that the construction of the provision of the Practice Act relating to demurrers appears to us to have been long since settled the other way.

Sections forty and forty-one of the Practice Act are, in respect to the point under consideration, substantially the same as sections one hundred and forty-four and one hundred and forty-five of the New York code. Under those provisions it was held by the Supreme Courts of New York at a very early day, and before their adoption in California, that it was a sufficient specification of the sixth ground of demurrer to state, in the language of the Act, "that the complaint does not state facts sufficient to constitute a cause of action." And this construction was approved and established by the Court of Appeals of New York as early as 1851. (Haine v. Baker, 1 Seld. 359.)

As long ago as October, 1856, the question was raised in this State, and the Supreme Court, after intimating that as an original question they might, perhaps, have given a different construction to the provisions under consideration, held that as the Courts of this State had adopted and followed the construction of the Courts of New York, they would not change it. In discussing the question the Court say: "In mere matters of practice involving no principle, it would be safer to acquiesce in a rule which has been established for several years in the inferior Courts of this State, the abrogation of which might introduce confusion and operate hardly on litigants." (6 Cal. 393.) It is now nearly eight years since that decision was announced, and we are not aware that it was ever afterward questioned by the late Supreme Court. The reasons then given operate with much greater force now, after the construction has been so long acquiesced in by the highest Court in the State. As a general proposition, the Court do not now propose to overrule this construction. But it seems to us that the conclusion reached does overrule it, as to a particular class of cases.

It has been held in a number of instances that the

Miller v. Board of Supervisors of Sacramento County.

defendant may take advantage of the Statute of Limitations by demurrer, when it appears on the face of the complaint that the cause of action is barred. If so, the objection to the complaint on this ground must fall under the sixth subdivision of section forty: "That the complaint does not state facts sufficient to constitute a cause of action." We do not perceive any satisfactory ground upon which the Court can make a distinction between the ground of demurrer we are now considering and any other falling under the same head, where the statute itself does not seem to us to have made any. If the Court in its discretion may make one exception, we do not see why it may not another; and thus by extending the exercise of this discretion, overrule the previous decisions upon the provisions under consideration as to every case. With due deference to the opinion of our associates, we are unable to regard the case as one for the exercise of a judicial discretion. It seems to us to be a question of construction; and when the construction has been once settled, and for a long time acquiesced in, it becomes practically a part of the statute itself; and it ought not, in our opinion, to be changed except by legislative action. For these reasons we dissent.

J. E. MILLER v. THE BOARD OF SUPERVISORS OF SACRAMENTO COUNTY.

CERTIORARI.-The amended Constitution confers upon the Supreme Court original jurisdiction to issue writs of certiorari.

OFFICIAL BONDS. In the matter of the approval of the bonds of officers, Boards of Supervisors exercise judicial functions.

RESIGNATION OF OFFICE.-One who has been elected to an office cannot resign the same until the time has arrived when he is entitled by law to possess the same, and he has taken the oath and given the required bond, and entered upon the discharge of its duties.

SAME. An attempt by one elected to an office to resign the same before he has qualified and entered upon the discharge of its duties, is abortive and Ineffectual. REJECTION OF OFFCIAL BONDS.-A Board of Supervisors has no jurisdiction to reject an official bond, except for the reasons that it is not in form and substance in compliance with the requirements of the statute, or is not executed by sufficient and responsible sureties; and the Supreme Court will