79 P. 865 | Cal. | 1905
This is an action to quiet title to certain land. Defendants demurred to the complaint upon the general ground that it does not state facts sufficient to constitute a cause of action — no other ground of demurrer being stated. The demurrer was overruled. Defendants then answered, denying plaintiff's title to the land, and setting up title in themselves. The court found for the plaintiff and rendered judgment accordingly. Defendants appealed from the judgment upon the judgment-roll.
The only point made by appellants for a reversal is, that the complaint does not contain an averment that plaintiff is a corporation. The fact as to this contention is, that while in the title of the case as it appears at the commencement of the complaint the plaintiff is designated as "a corporation," there is no averment in the body of the complaint of plaintiff's corporate existence. The court found that plaintiff was a corporation.
Waiving other questions discussed by counsel, we are satisfied that the point sought to be made by appellants is not raised by the general demurrer. The point that plaintiff was not a corporation goes only to its capacity to maintain an action, and not to the sufficiency of the facts averred to constitute the alleged cause of action; and therefore it could be raised by demurrer to the complaint only under subdivision 2 of section 430 of the Code of Civil Procedure, which provides as a cause of demurrer "that plaintiff has not legal capacity to sue" — and then only where said want of capactiy "appears on the face" of the complaint. If it does not so appear, *181 the objection must be taken by answer pursuant to section 433.
There are some authorities which appear to support appellant's contention, and the principal one cited by them is Miller v. PineMining Co., 3 Idaho, 493;1 but in the notes to the case the author of the work, after expressing his disapproval of the doctrine announced therein, cites a multitude of cases holding the other way. We will notice only the first case cited by the author, — Phoenix Bank v. Donnell,
Under the above views it is not necessary to consider respondent's discussion of "aider by verdict" and other points made by it.
The judgment appealed from is affirmed.
Lorigan, J., and Henshaw, J., concurred.