11 Mont. 490 | Mont. | 1892
Lead Opinion
The first ground of the demurrer which we will examine is this: It is contended by the county that the complaint does not allege facts showing that the county clerk of Yellowstone caused to be published in appellant’s daily newspaper the certified copy of the constitution. The allegation of the complaint upon this point, upon which appellant relies, is that “ the county clerk furnished the plaintiff with the said certified copy of the said proposed constitution for publication in the plaintiff’s newspaper.”
This complaint is an amended one. The plaintiff, therefore, once attempted to better his pleading. Courts are liberal in allowing amendments to pleadings; and appellant could doubtless have obtained leave to amend again, and could easily have stated in his complaint, in unequivocal language, that the county clerk caused the constitution to be published in his said daily newspaper. He did not do so. Of course, on demurrer, the allegations of the complaint are taken as true. The conduct of the appellant in adhering to his allegation as made, and not amending so as to state his cause of action clearly within the statute, when he could so readily have done so, if such allegation would have been true, gives the court the more reason to hold that we cannot aid the pleading by implication or forced construction. We therefore read the complaint as it is written. If the appellant were authorized to print the constitution in his said daily newspaper as a charge against the county of Yellowstone,, he was so authorized by the county clerk. The county clerk was a public officer. The appellant was charged with knowledge of the official and not personal character of him with whom he dealt; and he should have known whether the county clerk ordered him to publish this constitution, or caused it to be published in appellant’s daily newspaper, or whether the county clerk furnished it to him as a matter of general news, for his accommodation, or for publication in some other newspaper of his than his daily newspaper, or for any other purpose. (Lebcher v. Commissioners, 9 Mont. 320.)
It cannot be contended that this publication by the appellant
Again, assume for the moment that the county clerk did cause the copy of the constitution to be published in appellant’s daily newspaper — not that the complaint alleged it, but assume that it was a fact. Then the language, as it is found in this complaint, would not be untrue. It would be consistent with the fact that the clerk caused the publication. But, because the language of a pleading is not inconsistent with a state of facts, that is not alleging such state of facts. The complaint must allege the cause of action, and not simply set up matter which happens not to negative a cause of action. The cause of action must be found in the words of the complaint.
Again, even if it were considered that the allegation of the complaint should® be construed to the effect that the county clerk caused the publication to be made by appellant, the complaint does not state that it was to be made in appellant’s daily newspaper named in the complaint, or in what newspaper of appellant.
It was such a simple matter to allege these facts constituting a cause of action — the appellant had such abundant opportunity to allege them, if they were true — and as he refused to do so, apparently with deliberation, it would seem that the pleader considered that he had set out his alleged cause of action as fully as the facts warranted; and those facts, as disclosed by the complaint, we are of opinion, for the reasons above expressed, were not sufficient.
Affirmed„
Concurrence Opinion
(concurring). —■ In the case of Daniels v. Andes Ins. Co. 2 Mont. 84, considering the proper principles to govern in the construction of pleadings under the Code, the court, per Mr. Justice Servís, said: “The vigorous rale of the old common law, which construed a pleading most unfavorably to the party pleading, was most unquestionably intended to be abolished by our Code commissioners; for in section 78 they expressly provided that(in the construction oí a pleading, for the purpose of determining its effects, its allegations shall be liberally construed, with a view to substantial justice between the parties;’ and the very next section (79) provides: sThe court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the parties; and no judgment shall be reversed or affected by reason of such error or defect,”’ The same provisions still remain in our Code of Civil Procedure, (§§ 100, 119.)
In Sullivan v. Dunphy, 4 Mont. 511, the holding was to the same effect; and again, in United States v. Williams, 6 Mont. 386, Mr. Justice McLeary, delivering the opinion of the court, observes: “The third ground of objection seeks to try this complaint by the common-law forms, and objects that eit cannot be ascertained therefrom whether the action is in the nature of an action of replevin or of trover or of trespass.’ We do not believe it is necessary to try the pleadings under our Code by the rigid rules of common law. That procrustean bed has long since been broken by legislation,” and cites Daniels v. Insurance Co. supra. It may be added, carrying the figure a step further, that the procrustean rule attributed to the common law in respect to the point now under consideration was less rigorous and more yielding than often declared in judicial interpretation. For support to this proposition, I refer to Mr. Chitty, the great authority on common-law pleading. In speaking of the maxim attributed to the common law, that, where two different meanings may be drawn from the language of the pleader,
In my opinion the cases cited comprehend and bespeak the spirit of the Code in reference to'the principles to be applied in construing a pleading, and I do not agree with the observations contained in the opinion of the majority of the court upon this subject. Nor do I concur in the idea that, because a party has a legal right to amend his pleading, that fact should be used as a reason for construing what he has alleged in a more unfavorable light than might otherwise be done.
This is an action to recover for the publication of said proposed constitution in a certain newspaper, named the Daily Billings Gazette, which appellant alleged he was publishing» It is admitted that in order to create a liability against the county therefor, under the law, the county clerk of Yellowstone County must have caused said copy of the constitution to be published in said newspaper. My view of the case is that an allegation that said county clerk furnished the plaintiff with the said certified copy of the said proposed constitution for publication in plaintiff’s said newspaper, or in the said Daily Billings Gazette, or an allegation, made in other words, showing with certainty that said county clerk furnished the plaintiff with said certified copy of the constitution for publication in the newspaper named, would, when considered with the other matters of inducement alleged in said complaint, be sufficient» I think the fair, substantial intendment of such an allegation would be to show the facts whereby plaintiff insists that said county clerk caused said copy of the constitution to be published in said newspaper, for the purpose of discharging his duty as provided by law. In fact, that would be, in my opinion, better than the allegation that the county clerh caused said publication to be made, because the latter allegation, which, as I understand, the opinion of the court insists on, would be more
The point in which I consider said allegation wanting is in that it does not aver that the county clerk furnished plaintiff with said certified copy of said proposed constitution for publication in said newspaper or in the newspaper named. The allegation, as stated in the complaint, is: “ That the county clerk of Yellowstone County, in accordance with the provisions of section 10 of said act, furnished the plaintiff, for publication in his newspaper, the nominations to the several offices to be filled at the said election, and at the same time furnished the plaintiff with the said certified copy of the said proposed constitution, for publication in the plaintiff’s newspaper.” A party may issue as many different newspapers, under as many different names, as he sees fit. The copy may have been furnished to plaintiff for publication in the plaintiff’s newspaper, and may have been published in his newspaper, and yet that publication may not have been in the newspaper named in the complaint, because plaintiff may have been publishing other newspapers or papers eligible to have been selected by the .county clerk in which to have caused such publication. Herein there seems to be a substantial ambiguity; and while, as we have seen, the Code requires that the allegations of the pleading be construed liberally, with a view to substantial justice, still it requires a concise statement of the cause of action (§ 85, Code Civ. Proe.), and provides that ambiguity shall constitute a ground of demurrer. (§ 87, Code Civ. Proe.) The demurrer in this case, in addition to the ground that the complaint fails to state facts sufficient to constitute a cause of action, also demurs on the ground of ambiguity.
The county clerk was directed by statute to cause the publication to be made in one or more newspapers; and, if he failed in his duty, it was not the duty or right of the plaintiff to assume to discharge the duties of the county clerk, nor could
