Reed v. Poindexter

| Mont. | Jun 10, 1895

De Witt, J.

It does not appear from the record whether the demurrer was sustained upon the first ground or the second, or whether upon both grounds. We are of opinion that the demurrer was good upon the second ground. The complaint was certainly ambiguous.

The two causes of action to which the demurrer refers are in fact but one cause of action, differently stated, and contradictorily stated. The plaintiffs sought to follow the personal property into the hands of Poindexter and J ones, who were persons other than the original purchaser of the property. The complaint stated in one place that the property was.transferred to said Poindexter and Jones as assignees for the benefit of creditors. Again, the complaint stated that the transfer was made to these persons in payment of a debt due by the Commercial Company to said Poindexter. One of these statements may be true. They are certainly not each true, for the reason that they contradict each other. It is true, as defendants set up in their demurrer, that they cannot determine upon which of these contradictory allegations the plaintiffs rely. One may not set up his cause of action in terms which contradict each other and expect a defendant to answer. We think the judgment must be sustained upon the second ground of the demurrer.

We do not think that the district court was required to make any further investigation of the complaint. We are of opinion that that court was not called upon to go further, and determine whether either or both of the statements of the plaintiffs’ cause of action were sufficient. In order to obtain a ruling from the district court as to whether plaintiffs had a cause of action, they should have first set up that cause of action in consistent language, and then the court could have determined whether the facts set up were sufficient. We are also of opinion that we are not required to determine whether either of the statements of the cause of action was sufficient. If either we or the district court were required to make such investigation, it would be in effect saying to a plaintiff’s counsel, “You may set up your alleged cause of action in as many contradictory expressions as you please, and get a ruling of the court upon which one is good and then rely upon the same in your proof. ’ ’ This we decline to do. For all that appears in the record, this is what the district court declined to do; for it appears simply that that court sustained the demurrer without stating upon which ground.

The judgment is affirmed, and the case is remanded to the district court, with permission, however, to the plaintiffs to amend their complaint.

Affirmed.

Pemberton, C. J., and Hunt, J, concur.