13 Iowa 487 | Iowa | 1862
The Revision, § 2877, provides that the defendant may demur to the petition only when it appears on its face, either:
First, that the court had no jurisdiction of the defendant or of the subject of the action, or
' Second, that the plaintiff has no legal capacity to sue, or
Third, that the petition does not state facts sufficient to constitute a cause of action, &c. Section 2877 provides that the demurrer must distinctly specify, and consecutively number, as the ground of objection, some matter of error intended to be argued as a defect in the pleading. Unless it do so, it shall be disregarded, and it shall not be enough to state the objection in the terms of the preceding section, except that a demurrer to an equitable petition for the fifth reason of § 2876, may be stated in the terms thereof.
Unless the proceeding, therefore, is an equitable one, or if the petition is at law, a demurrer thereto, which merely states that the petition does not state facts sufficient to constitute a cause of action, should be disregarded by the court. The petition, in this case, was not for relief in equity, but was a proceeding at law.
The causes of demurrer, are:
First, that the matters set forth in said petition do not constitute any cause of action against defendant.
Second, that said petition does not show such a state of facts as will justify the court in granting any relief, by judgment or otherwise, to said plaintiff.
There can be no question as to the proper construction of this plain and imperative provision of the statute.
The court should have disregarded, and not sustained, the demurrer. The question, therefore, as to whether the plaintiff, by his pleading, shows that he is entitled to a recovery, cannot be considered.
Judgment Reversed.
