Jenness v. Simpson

Watson, J. The demurrer is special, assigning two causes: First, “That the language in said plea: ‘And the defendant avers that on September 24th, 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. Tt 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 [112] 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. See also McLeod v. The Conn. & Pass. R. 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. Hibbard, 26 Vt. 698; McLeod v. The Conn. & Pass. R. R. R. Co., cited above. The plaintiff further contends that this plea is defective in that it professes to answer the whole declaration, whereas it does not answer the trespasses and grievances committed after the date of the alleged release. • But this question does not appear of record to have been raised or passed upon below; and since this Court sits only in error, the question is not here. Judgment reversed, demurrer to the second plea sustained, the second plea adjudged insufficient, and cause remanded.