Andrews v. Wynn

Corson, J. This is an appeal from an order overruling a demurrer to the complaint. The action was brought to foreclose a mortgage on certain lots in the city of Pierre. A demurrer was interposed to the complaint, on the ground that the complaint does not state facts sufficient to constitute a cause of action. The particular grounds relied on to sustain the demurrer are stated by the learned counsel for appellant in his brief as follows: “The complaint is demurrable because it nowhere alleges that the defendant executed and delivered the promissory note and mortgage declared upon to the plaintiff. The case is entitled in the caption as ‘Edward H. Andrews, plaintiff, vs. Charles H. Wynn, Defendant.’ The complaint does not allege that the defendant executed and delivered to Edward H. Andrews the note and mortgage declared upon. The complaint does not allege that the plaintiff is the owner — 42 — of the promissory note and mortgage declared upon, nor does it allege any assignment or transfer from E. H. Andrews to Edward H. Andrews, and there is no allegation that Edward H. Andrews and E. H. Andrews are one and the same person. There is nothing in the complaint to show why Edward H. Andrews should recover of the defendant in this action upon the promissory note and mortgage declared upon. ” The title of the action in both the summons and complaint is “Edward H. Andrews vs. Charles H. Wynn.” In the complaint it is alleged that the defendant, Charles H. Wynn, made, executed and delivered to “E. H. Andrews” his certain promissory note * * * and thereby promised to pay “E. H. Andrews,” etc. A copy of the note is set out, in which the defendant promises to pay to the order of E. H. Andrews, etc. It is also alleged that to secure the payment of said note the defendant made, executed and delivered to E. H, Andrews a mortgage, and thereby mortgaged to said “E. H. Andrews,” in fee, certain lands, etc. The only allegation in the complaint indicating in any manner that E. H. Andrews is the same person as Edward H. Andrews, the plaintiff, is the allegation: “And the plaintiff further states that there is now justly due the plaintiff upon said note and mortgage the sum of” $1,500, interest, etc. This however, is a conclusion of law from the facts previously stated in the complaint, and is not sufficient of itself to show that the plaintiff and said E. H. Andrews are one and the same. A court cannot take judicial notice that Edward H. Andrews and E. H. Andrews are one and the same person, or that E. H. is not the full Christian name of a person. Gardner v. McClure, 6 Minn. 250 (Gill. 167); Nelson v. Highland, 13 Cal. 75; Maxw. Code Pl. 75. The counsel for respondent contend that the action might have been maintained in the name of E. H. Andrews. Probably such a pleading might be sustained in some of the states. Zwickley v. Haney, 63 Wis. 464, 23 N. W. Rep. 577; Maxw. Code Pl. 75. But that question is not involved in this case. — 43 — The difficulty with the complaint in the case at bar is that one Edward H. Andrews brings the suit to recover on a note and mortgage apparently made to one E. H. Andrews, and that it is nowhere alleged in the complaint that Edward H. and E. H. are one and the same person, or that the note and mortgage were made, executed and delivered to the plaintiff; in other words, there is nothing in the complaint to show that the plaintiff is entitled to maintain the action. Again, the counsel for respondent contended that under the last clause of Section 4927, Comp. Laws, which provides that ‘ ‘in an action or defense founded upon an instrument in writing for the payment of money only it shall be sufficient for the party to give the copy of the instrument, and state there is due to him thereon from the adverse party a specified sum which he claims, ” an allegation that the defendant made and delivered the note and mortgage to the plaintiff is implied, as was held in Marshall v. Rockwood, 12 How. Pr. 452. But in the well considered case of Payser v. McCormack, 51 How. Pr. 205, it was held that a similar provision in the New York code did not apply to an action to foreclose a mortgage, and that such an action is not an action for the recovery of money only, but to subject property to the payment of a debt. The doctrine laid down in the case last cited is substantially the same as that laid down in the case of Prindle v. Caruthers, 15 N. Y. 425. In that case the court of appeals of New York says: “The cases included in section one hundred and sixty-two (last clause) will not embrace the case of mutual promises where any stipulation is contained, other than for the payment of money on either side, nor to unilateral contracts of the same character. Thus limited, it will be confined almost exclusively to bills of exchange, promissory notes, and other written promises for the payment of money without any other stipulation.” Had this action been brought on the note alone, the contention of counsel for respondent would have had much force, but, being brought to fore — 44 — close a mortgage, the implied allegations to sustain the action cannot be supplied by intendment under the act. The implied allegations under the last clause of Section 4927 are limited to actions maintainable under that section, and cannot be extended to embrace ordinary actions under the code. It is further contended by the counsel for the respondent that the objection is a mere technical one, and should be dis regarded, under the provisions of Section 4941, Comp. Caws which provides that “the court shall in every stage of the ac tion disregard any error or defect in the pleadings or proceedings which shall not effect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect. ” But we are not not inclined to take this view of the defects in this complaint. Had the allegations of the complaint been that the note and mortgage were made and delivered to Elmer H. Andrews, and no assignment alleged, and no allegation that the plaintiff was the owner of the note and mortgage, could it be contended that the plaintiff could recover? We think not. If, then, as we have seen, E. H., in the absence of an affirmative showing, may be regarded as the Christian name of a person, the same rule would apply. Of course, any allegation that the plaintiff, Edward H., and E. H., to whom the note and mortgage were made, executed, and delivered, were one and the same person, would cure the defect. But until there is such an allegation, is this court authorized to say that such is the fact? We are of the opinion that it is not, and that we could no more hold that E. H. meant Edward H. than we could say Elmer H. meant Edward H. The complaint must on its face show that the plaintiff is entitled to the judgment prayed for. Again, it is claimed by counsel for respondent, that a demurrer is not the proper remedy; that the defect is only a misnomer of the plaintiff that- cannot be reached by demurrer. But we cannot’ agree with the learned counsel in this contention. There is no misnomer of the plaintiff. He is properly — 45 — named in the record, but he does not show that the note and mortgage on which the suit is brought were made or delivered to him, or transferred to him, or that he and E. H. Andrews were one and the same person, or that he has any right to recover upon them. In other words, he does not connect himself in any legal manner with the note and mortgage, but upon the face of the record they seem to belong to another party, from whom he shows no transfer or assignment. Our attention has been called to the case of Zwickey v. Haney, 63 Wis. 464, 23 N. W. Rep. 577, as supporting the complaint in this action, but we are of the opinion that that case does not aid the respondent. It would seem from the rather brief statement in the opinion of the court that the action was brought in the name of “M..G., and C. Zwickey, ” but when judgment was taken that names of the plaintiffs, “Michael Zwickey, George Zwickey, and Casper Zwickey,” were named as the plaintiffs therein, and it was insisted that the court should not presume that the persons named in the complaint were the same persons as those named in the judgment. But the court held that it must assume from the record that M. G. and C. stand for Michael, George, and Casper. Suppose, in the case at bar, the action had been brought in the name of E. H. Andrews, and on rendering judgment the full Christian name of Edward H. Andrews had been inserted as the plaintiff, we think this court would be authorized to presume that the trial court had before it proof that the Christian name of E. H. Andrews was Edward H. Andrews. But on demurrer we are not authorized to make such a presumption. The omission to state a fact in the complaint material to the plaintiff’s right to recover cannot be supplied by intendment, unless it is a fact of which the court will take judicial notice, or other facts are stated that necessarily imply the existence of the fact omitted. We are of the opinion, therefore, that the demurrer should have been sustained, and the order overruling the same must be reversed. The order of the circuit court is reversed, and the circuit court is di — 46 — rected to allow the plaintiff to amend his complaint as he maybe advised, within such time and upon such terms as the court may deem just. Bennett, P. J., concurring.