Henley v. Bush

A. J. 'WALKER, C. J.— The court below erred in visiting the plaintiff’s demurrer to the defendant’s plea upon the complaint. Until the Code was adopted, it was “an established rule, that upon the argument of a demurrer, the court would, notwithstanding the defect in the pleading demurred to, give judgment against the party whose pleading- was first defective in substance.—1 Chilty on PI. 668. That rule is abolished in this State by section 2253 of the Code, which is in the following words : “No demurrer-in pleading can be allowed, but to matter of substance, which the party demurring specifies; and no objection can be taken or allowed, which is not distinctly stated' in- the demurrer.” An analysis of this law discloses, that a demurrer can only be for matter of substance; that the matter of substance must be specified in the demurrer byihe party demurring; and that no objection can be taken- or allowed without a distinct statement of it, which must be in the demurrer. If the court carries the plaintiff’s demurrer to the plea back upon his own complaint, the statute will be violated. The defendant would have the benefit of a demurrer, when he was not the party demurring, and when he did not specify any matter of substance, as to which the complaint was defective; and an objection would.be taken and allowed, which was [641] not distinctly stated in a demurrer. Everything prohibited by the statute would be done. Ve have in the Code not merely an abolition of general demurrers, and a substitution of special demurrers ; but we have, in addition thereto, an express prohibition of the making or allowing of any objection not stated in the demurrer. This prohibition was useless, if nothing more than the adoption of special demurrers was intended. That is accomplished by the first clause of the section quoted. Not stopping with the mere requisition of special demurrers, the law has prescribed a special demurrer as the mode of making objections for substantial defects in pleadings. It would be difficult to find anything more appropriate for the operation of this superadded mandate of the law, than the rule of making a party’s demurrer the occasion of defeating his own pleading. The object of the legislature was to prevent surprise, and to protect parties from injury in consequence of errors in pleading not made known until the time for amendment had passed. If a demurrer to the plea can be visited upon the complaint, judgments may be affirmed and reversed in this court, on account of deficiencies in the complaint, which may never have been detected by the counsel on either side, until the cause was examined on appeal, when it would be too late to amend. It seems clear, therefore, that the visitation of demurrers upon the pleadings, antecedent to that in terms objected to, is within the mischief intended to be remedied, and therefore within the spirit of the law. A visitation of a demurrer upon antecedent pleadings, can only have the effect of a general demurrer. Cook v. Graham, 3 Cranch, 265. The privilege and benefits of a general demurrer cannot be conceded to a party since the Code, without a violation of its spirit. See Johnson v. Stebbins, 5 Ind. R. 364. The judgment of the court below must be reversed, for the error in visiting the demurrer to the plea upon the complaint. Nevertheless, we shall decide upon the sufficiency of the complaint, for the question will probably [642] be raised in tbe proper manner by the defendant, when the case returns to the circuit court. [2.] The complaint is upon a written promise by the defendant to return or account for a certain note to one Eobinson. Eobinson endorsed the writing, “in blank, to W. A. Scott,” who delivered it without any new endorsement to the plaintiff. Can the plaintiff maintain a suit upon the written contract in his own name ? He cannot sue, because he is the party really interested, upon an equitable title; for he sues upon a contract for the performance of one or the other of two acts, and not on “a promissory note, bond, or other contract, express or implied, for the payment of money.”—Code, § 2129. If, then, the plaintiff can maintain the suit in his name, it is because he has the legal title. According to the common law, he has no legal right, for it did not permit the transfer of the legal title to choses in action such as that sued upon. But the argument for the appellant is, that he has the legal title by virtue of section 1530 of the Code. That section does establish the assignability of the instrument described in the complaint, and it also prescribes endorsement as the mode of assignment. The plaintiff received the writing by delivery, not by an endorsement directly to him. But it is said, that the blank endorsement was a transfer by endorsement to any subsequent holder of the instrument; that the subsequent holder had a right to fill up the blank endorsement with his name, and that therefore the blank endorsement maybe treated as an endorsement to him. Such, we think, is the law. Agee & Agee v. Matlock, 25 Ala. 281; Story on Bills, § 207; Chitty on Bills, 255. A delivery of the instrument to the plaintiff was, prima facie, an authority to him to act as the endorsee, and to fill up the blank endorsement with his name. [3.] ¥e are also of the opinion, that after the lapse of a reasonable time for the return or accounting for the note mentioned in the instrument sued upon, the plaintiff had a right of action; and that in this case, such reasonable time did elapse before the commencement of the suit.—Garnett v. Yoe, 17 Ala. 74; Skinner v. Bedell’s [643] Adm’r, 32 Ala. 44. ¥e hold that the amended complaint was sufficient. The foregoing opinion covers all the questions passed upon in the court below. For that reason, and because the same questions now presented by the other pleading may not again arise, we forbear to decide any of the other questions argued the counsel.—Sibley v. Bondurant, 29 Ala. 570; Byrd v. McDaniel, 26 Ala. 582. The judgment of the court below is reversed, and the cause remanded.