Marx & Jorgenson v. Croisan

Lord, J. This was an action in replevin. A demurrer was filed to the complaint, and specified as the grounds [394] thereof, “that the same does not state facts sufficient to constitute a cause of action.” The court below overruled the demurrer, and the defendant refusing further to plead, judgment was rendered for the plaintiff. The objection is, that the complaint does not allege that the property seized was located in Marion County, in which the action was brought. It was argued that the action of replevin was local, and must be brought in the county where the property was taken and located, and that unless the complaint shows that the property was seized and situated in the county where the action was brought, it would be “fatally defective.” But this objection and the ai’gument based on it does not go to the sufficiency of the facts as a cause of action, but the right of the court to exercise its jurisdiction upon the facts, unless the complaint alleges that the property was taken and located in the county wherein the action was brought. It simply says in effect that, the action of replevin being local, the cause of action must be brought in the county where the property was taken and located, and that unless the complaint shows such fact by allegation, the court will have-no jurisdiction of the subject thereof. The result then is, that the ground of objection specified in the demurrer, and upon which the court rendered judgment, is not the true or real one now assigned and relied upon to reverse that judgment. At common law the cause of error here assigned was taken by special demurrer. Replevin was said to be local because it is necessary to give a local description of the taking complained of, and perhaps for the further reason that it is a proceeding partly in rem. '“In declaring in replevin, it is necessary to describe, and describe truly, the locus in quo, i. e., the close, house, or common, in which the cattle or goods in question were taken by the defendant; and as the necessity of alleging the true place of caption involves the necessity of laying. [395] the true town, parish, or ville, and of course the true county, the venue and county as well as the close, etc., are consequently material, and the action of necessity local.” (Gould’s Pleading, c. 3, sec. 111.) Hence, in the action of replevin at common law, the place, parish, etc., are material and traversable, and if the place of taking, parish, or viile was not alleged, the defendant may demur, but the omission is cured by pleading over, or after verdict. (Potter v. North, 1 Saund., note 1, of authorities.) This is well illustrated in Potter v. Bradley, 2 Moore & P. 78; 17 Eng. Cqm. L. 625. There the action was in replevin, and the defendant demurred specially, assigning fo,i‘ causes that it was not alleged, nor did it appear by the declaration, in what particular place or places in the said parish the said cattle or'any part thereof were taken. Upon the argument, the court said that “although where a plaintiff in replevin omits to name the particular place in the declaration, the defect may bo cured by the defendant’s pleading over or by verdict; still there had been no case in which it had been decided that the objection might not be raised by demurrer.” It is to be observed, however, that the objection was taken by special demurrer, and pointed out the matter omitted but required to be alleged in local actions, and consent was obtained to amend. Special demurrers, as known in the common-law practice, are now abolished, but the principle remains that “the demurrer shall distinctly specify the grounds of objection to the complaint,” and “unless it does so, it may be disregarded.” (Code, sec. 67.) When, therefore, the defendant wished to challenge the jurisdiction of the court to try the cause of action iii that county, unless the complaint alleged that the property was taken in Marion County, he should have distinctly specified that objection in his demurrer, and thereby [396] called the attention of the court to the precise point he asked to have decided. This he had a right to do by demurrer, and must do, or the objection would be waived. But as the case stands, the demurrer is put on the ground that the facts alleged do not state a cause of action, yet the objection relied upon to reverse the judgment rendered is, that the action being local, unless the complaint shows that the goods were taken in Marion County, wherein the action was brought, the court will have no jurisdiction of the cause of action. In some jurisdictions it has been held that judgment can only be given upon the cause assigned in the demurrer, and if it fails to assign or allege the proper cause, it wholly fails. In Wilson v. Mayor, 1 Abb. 4, Ingram, J., said: “I can see no good reason why a demurrer should be allowed to state one cause of demurrer and succeed on another which has not been stated. The object of the legislature in requiring the demurrer to state the grounds of objection to the complaint was to give the opposite party notice of the alleged defect. The complaint and answer are required to contain a plain statement of the cause of action or defense. No form is necessary, and no technicalities are encouraged, and the same system applied to the demurrer requires that it should plainly state the ground on which the demurrant rests his objection to the pleading. The object of the demurrer is to raise an issue upon the law, as the answer does upon the facts, and upon the trial the court is confined to that issue. It can never be upheld as an orderly proceeding in a court, while trying an issue of law, to find upon that issue in favor of one party, and to hold that there were other reasons, not involved in the issue, why judgment should be rendered against him.” In Hobart v. Frost, 5 Duer, 673, the demurrer specified as its only ground that the complaint did not state facts [397] sufficient to constitute a cause of action, and the argument in its support was, that it appeared on the face of the complaint that the judge making the order for the appointment of the receiver had no jurisdiction, etc., and the court held, “that if the objection to the jurisdiction were valid itself, it would not be taken under a demurrer specifying as its only ground that the complaint did not state facts sufficient to constitute a cause of . action. The ground that ought to have been specified to enable the court to listen to the objection was, that the plaintiff had not legal capacity to sue. The facts set forth in the complaint were plainly sufficient to constitute a cause of action. The objection was not that the action was not maintainable at all, but that the plaintiff had not a personal right to maintain it.” • It is true that the decisions in these cases are not of courts of last resort, and are not usually regarded by conclusive authority. Nor is it necessary for us to approve them, or go to that extent; yet there can be no doubt but that in a case like the present, where the facts are sufficient as a cause of action, and the objection raised is not specified, that it must be considered as waived and disregarded. The judgment is affirmed.