13 Or. 337 | Or. | 1886
This is a suit for a divorce. The defendant demurred to the complaint, upon the ground that the suit had hot been commenced within the time prescribed by the statute. • The court below overruled the demurrer, and the defendant refusing to further plead, upon motion, a default was taken for want of answer, and the suit referred to take and report the testimony. Upon the report of the referee, the cause was heard by the court, and the decree rendered from which this appeal is taken.
The error complained of is the overruling of the demurrer. The Code provides that “the defendant may demur to the complaint when it appears upon the face thereof .... that the action or suit has not been commenced within the time limited by this Code.” (Code, sec. 66, subd. 7; Id., sec. 385.) But when the suit is for a divorce, it is provided that “when the suit is for any of
The real inquiry, then, is whether a demurrer or answer is the proper pleading to take advantage of the statute. The language of the statute is that “ the defendant may admit the charge, and show in bar of the suit,” etc. — that is, admit the truth of the facts charged as facts, and show other facts in bar — confess and avoid —and this is precisely what the defendant claims is the effect of his demurrer. To sustain this view, a demurrer must be an absolute admission of the facts demurred to. What does a demurrer admit? In his treatise on pleadings, Mr. Gould says: “A demurrer to the declaration is not classed among pleas to the action, not only because
In Pease v. Phelps, 10 Conn. 62, the court say: “A demurrer presents only an issue in law to the court for consideration; the jury have no concern with it; and although it is a rule of pleading that a demurrer admits facts well' pleaded for the sole purpose of determining their legal sufficiency, yet, as a rule of evidence, it was never supposed that a demurrer admitted anything.’-’ In Tomkins v. Ashby, Moo. & M. 32, it was held that a demurrer or plea to a bill in equity does not admit the facts charged in it, so as to be evidence against a defendant, if those facts arise in a future action between the same parties; Abbott, C. J., remarking that it was nothing more than saying “ that, supposing the facts charged to be true, the defendant is not bound to answer.”
Mr. Bliss says:
“In denying the legal conclusions from the facts pleaded, the admission of their truth as facts is necessarily implied, and the old rule was stated, substantially, that the truth of a pleading not obnoxious to a general demurrer was admitted; or more briefly, that a demurrer admitted the facts well pleaded. Thus if- the demurrer is overruled, and the pleading demurred to thus held to be good, unless the demurrer is withdrawn judgment will*340 "be necessarily rendered against the party demurring, because he has admitted the truth of the pleading; that is, has confessed the facts held to constitute a cause of action or defense. Such is the theory, and yet it is improperly called an affirmative admission. Nothing is in fact admitted. The demurrant simply denies the proposition of law involved in the pleading demurred to, and the parties go to trial upon an issue of law, and if this issue is found against him, judgment goes against him. The facts are admitted only because they are not denied.” (Bliss on Code Pleading, sec. 418.)
A demurrer, then, is not an absolute admission. Its only office is to raise issues of law upon the facts stated in the pleadings demurred to. Nor, as Crockett, J., said, is it “ the office of a demurrer to set out the facts. On the contrary, all the facts involved in a demurrer are those alleged in the pleading demurred to, and the demurrer merely raises a question of law as to the suffi- . ciency of the facts to constitute a cause of action or defense.” (Brennan v. Ford, 46 Cal. 12.) "When allegations in a pleading are admitted for the purpose of a demurrer, they are admitted for that purpose only, and should not be commented upon by the court as if they were da facto true. (Day v. Brownrigg, 10 Ch. Div. 294.) It is a pleading by which one of the parties, in effect, says that the facts stated by the adverse party in his pleading, even assuming them to be true, do not sustain the contention based on them, or in a word, do not show a good cause of action or defense. This is not admitting the facts charged as de facto true. It is simply admitting the facts for the sole purpose of presenting their sufficiency to the court for determination; or equivalent to saying: “If the facts 'be so, the defendant is not bound to answer.” Now, this is not the kind of pleading, or the admission required by the pleading, which the stat
There was no error. The decree of the court below is affirmed.