197 F. 425 | D. Idaho | 1908
“That on or about March 30, 1907, the defendant was indebted, to James A. Colson & Son * * * in the sum of three thousand dollars ($3,000.00), which sum was then and thére due and payable from said defendant to said James A. Colson & Son.”
Assignment, demand for payment, and refusal to pay are averred’, "but neither directly nor indirectly does the plaintiff plead the facts or circumstances upon which the claim of indebtedness is based. By subdivision 2 bf section 4168 of the Revised Statutes of Idaho it is provided that a complaint, among other things, must contain “a statement of the facts constituting the cause of action in ordinary and concise language.” * While brevity in pleadiñgs is to be commended, the Code contemplates that the ultimate facts, as distinguished from inere conclusions, shall be detailed with sufficient particularity to apprise the defendant of the basis of the plaintiff’s claim. For the plaintiff to allege that the defendant is indebted to him¡, without setting forth when, where, or how the indebtedness arose, is not a statement of “the facts constituting” a cause of action, and, in effect, is little more than a demand for judgment. Swanholm v. Reeser, 3 Idaho (Hasb.) 476, 31 Pac. 804. The reason of the rule applies with great force in a case where, as here, it is sought to charge indebtedness upon a party whose functions are special, and whose legitimate activities are measurably circumscribed. It is therefore thought that the plaintiff, in order to state a cause of action, must set forth the facts out of which the assigned indebtedness arose with sufficient detail and completeness to disclose an obligation within the scope of defendant’s authority, and a fulfillment by the plaintiff and its assignor of the conditions precedent to its right successfully to maintain the suit.
By section 10 of article 9 of the Constitution of Idaho, it is provided that:
“The location of the University of Idaho as established by existing laws is hereby confirmed. All the rights, immunities, franchises and endowments heretofore granted thereto by the Territory of Idaho are hereby perpetuated unto the said University. The Regents shall have the general supervision of the University and the control and direction of all the funds of and appropriations to the University, under such regulations as may be prescribed by law. * * * ”
Clearly the University is a public institution, and, in its government, the corporation thus created performs certain administrative functions of the state. It is, of course, not pretended that an individual can maintain an action against the state unless it consents to submit itself to the jurisdiction of the courts, but this exemption the state may waive; and assuming, therefore, that the defendant was brought into existence and is maintained only for the purpose of performing certain administrative functions which might have been performed directly by the state, through its executive officers, the question is whether in creating the defendant corporation it was contemplated that, among- other things, it should have the power to sue and he sued. Subject to rules of conduct generally applicable to trustees, and limited only by the purpose of their incorporation, the Regents were clothed with plenary power, and their acts were not dependent for their validity upon the approval of any other officer or board. They were authorized both to enter into and to fulfill their contracts, and to pay, as well as to incur, indebtedness. True it is that neither the act creating the defendant nor any subsequent statute expressly confers the power to sue or be sued, but there was no attempt on the part of the Legislature expressly to define all of
The objection is urged that, if a judgment is rendered against the defendant, it follows that the court may direct the seizure and sale of its property — that is, of the University — in order to satisfy the judgment, and that no such result could have been contemplated by 'the Legislature. The objection goes, not to the power of the Legislature to subject the defendant to the jurisdiction of the courts, Tut, in the absence of an express provision to that effect, the consideration is supposed to militate against the reasonbleness of the view that the power of the defendant to be sued is implied. It is not at this-time necessary to decide in what manner a judgment could or should be enforced against the defendant, or whether the court could or 'would, for the purpose of executing its judgment, cause, the prop
Upon all grounds, therefore, except the insufficiency of the complaint, the demurrer will be overruled, and upon that ground it is sustained with leave to the plaintiff to serve and file an amended complaint within 20 days from the date hereof.