117 Cal. 481 | Cal. | 1897
Upon a former appeal in this action (Hibernia etc. Soc. v. Thornton, 109 Cal. 427; 50 Am. St.
The right of a defendant to move for judgment upon the pleadings, when the complaint fails to state a cause of action, is well settled in this state. (King v. Montgomery, 50 Cal. 115; Kelly v. Kriess, 68 Cal. 210; DeToro v. Robinson, 91 Cal. 371.) Upon such motion, however, the court cannot consider any matter outside of the complaint, or any defense thereto in the answer, but the motion is to be determined upon the same principles as would be a demurrer to the complaint upon the same ground. All the facts alleged in the complaint are admitted for the purposes of the motion, and the court is to determine whether these facts constitute a cause of action. If the necessary facts are contained in the complaint, the objection that they are defectively set forth, or are in an ambiguous or uncertain form, will be unavailing. There must be an
The complaint in the present action contains the ordinary allegations in an action upon a promissory note. It alleges the making of the note by the defendant and his wife, setting forth a copy thereof, the demand for its payment after maturity, that no part of it has been paid, and prays for judgment. The defendant, however, contends that by reason of the clause at the end of the promissory note, viz: “This note secured by a mortgage of even date herewith,” it appears from the complaint that the note was secured by a mortgage, and therefore the complaint fails to show a right to maintain a separate action upon the note. There is, however, no averment in the complaint that the note was secured by a mortgage, and the recital to that effect in the note cannot, as matter of pleading, be treated as the equivalent of such averment. It is only by inference or argument from this recital that it can be assumed that a mortgage was ever executed, and the rule is as much in force under the code as at common law that argumentative pleading is not permissible. “Matters of substance must be alleged in direct terms and not by way of recital or reference, much less by exhibits merely attached to the pleading. Whatever is an essential element to a cause of action must be presented by a distinct averment, and cannot be left to an inference to be drawn from the construction of a document attached to the complaint” (Burkett v. Griffith, 90 Cal. 532; 25 Am. St. Rep. 151); and for the purposes of pleading the rule is the same, whether the instrument is set forth by copy in the body of the complaint or is attached thereto as an exhibit. The defendant might have demurred to the complaint on the ground that it was doubtful or uncertain therefrom whether in fact the note was secured by a mortgage, but, in the absence of such demurrer, the complaint was sufficient to sustain a judgment by default for the amount of the note. In the answer the defendant has
This motion for judgment on the pleadings was made in the absence of the plaintiff’s counsel, but the grounds upon which it was to be determined were not changed by this fact. The plaintiff afterward moved to set aside the judgment, on the ground of excusable neglect, but its motion was denied, and it has also appealed from that order. As the reversal of the judgment has the effect to give to the plaintiff the relief sought by that motion, it is unnecessary to consider the merits of the motion upon this appeal.
The judgment and order appealed from are reversed.
Garoutte, J., and Van Fleet, J., concurred.
Hearing in Bank denied.