Jones v. Brunskill

Dillon, J. 1. Pleading: demurrer. No question is presented by the record except the ruling of the court on the demurrer to the second amended petition. And here the appellant makes the point, that the demurrer was so general that it ought to have been disregarded by the court below. Section 2877 of the Revision provides that “ the demurrer must distinctly specify, as the grounds of the objection, some matter of error intended to be argued as a defect in the pleading, and unless it do so it shall be disregarded." It is plain that the demurrer in this case does mot meet the requirement of the statute. The writing attached to the petition consisted of a large amount of testimony given by the defendant as a witness in another case, [131] and not relating directly, at all events, to the claim in suit Viewed with reference to the nature of this testimony and ■the manner in which it is pleaded, the demurrer does not point out with the requisite certainty the defect- in the pleading to which it is addressed. Does it mean that the alleged new promise is not sufficient, because the testimony which is attached as the evidence of it does not in fact contain any admission ? Or does it concede this, and ;mean that it is not an admission “made by the defendant in writing, as the statute requires ? Why it is not “ an admission * * * according to the law of evidence,” is not specified. Under the language of the demurrer, it is difficult to say what point might not be made in the argument. Our views of this section are very clearly stated in the following cases: Davenport Gas Light and Coke Company v. The City of Davenport, 15 Iowa, 6, 16; McKellar v. Stout, 13 Id., 487. The statute condemns language so general as to leave the party filing the pleading demurred to ignorant of what the real objection is, until it is developed in the argument. And yet a demurrer is not to be transmuted into an argument. Where the pleader takes the requisite time and care, he will usually have little difficulty in steering safely between Scylla and Charyhdis — between vague generalities and needless prolixity. Thus, in this case (without now intimating an opinion as to whether the grounds would be well taken), the demurrer could point out that the alleged acknowledgment was insufficient, because, 1st. It contains no promise or admission in fact in relation to the debt sued for. 2d. The alleged ■ admission or new promise was not made to the plaintiff or any one representing him. 3d. Was not made .voluntarily, but in a cause where he was compelled to testify. 4th. The admission or promise is not made in writing, &e., &c. We have the less hesitation in making this disposition of the cause, because many of the questions argued have [132] already been settled in tbe case of Newfield v. Blawn, 16 Iowa, 297. As the plaintiff does not appear to have called tbe attention of tbe District Court to tbe generality of tbe demurrer, or objected to it on that ground, tbe costs in this court will abide tbe final result. Because tbe District Court sustained tbe demurrer when it should have been disregarded, tbe judgment is reversed and tbe cause remanded, with leave to the defendant to make his demurrer more specific, or otherwise to question tbe sufficiency of tbe petition, or to answer tbe same, as be shall be advised. Reversed.