State ex rel. Kittel v. Jennings

47 Fla. 302 | Fla. | 1904

Hocker, J.

(after stating the facts). — The purpose of that part of section 1053 of the Revised Statutes which requires “the substantial matters of law intended to be argued” to be stated would seem to be evident. It was intended to direct the attention of the parties and the court to the specific propositions of law, which being applied to the facts of the pleading demurred to, would, to the extent of each such specific proposition, entitle the party demurring to the judgment of the court in his favor. When the substantial matters are thus stated, the parties come before the court with clear conceptions of their respective rights and duties and there can be no room for the contention that the party who has to meet the demurrer has been misled because of a want of definiteness and certainty in the demurrer. In the case of Florida Central & Peninsular R. R. Co. v. Ashmore, 43 Fla. 272, 32 South. Rep. 832, this court found it necessary to examine critically the various statutes and rules applying to the structure of demurrers, and particularly of the requirement that the substantial matters of law intended to be argued shall be stated. As the result of that examination this court enounced its construction of the statutes and rules in the following language: “The change made in section 1053, Revised Statutes, requires the substantial matters of law intended to be argued to be stated and under this section it is the opinion of the court that the demurrer should be held to waive or abandon all objections not stated, except those extending to such essential and vital defects in pleading as to show no cause of action or matter of defense, and such as are incapable of being cured by the statute of jeofails. Such defects can not of course embrace defective statements or formal matters, but must be such as to exhibit a total absence of allegation of facts, without which there can be no liability inferred. In determining the sufficiency of a demurrer the court will be confined to the grounds stated, and will examine no others, unless they extend to an omission to allege substantive facts which are essential to a right of action or matter of defense, and which are not implied in or inferable from those that are alleged.” Applying the rule thus enounced to the case at bar we are constrained to conclude that the demurrer is too general in its nature to require us to do more than determine that there are no such essential and vital defects in the alternative writ as to show no cause of action and are incapable of being cured by the statute of jeofails.

It is considered and ordered that the demurrer to the alternative writ be and the same is hereby overruled, that the motion to enter judgment be denied, and that the respondents obey the writ or show cause by answer why a peremptory writ of mandamus should not issue to compel obedience therewith, within thirty days from the date of the filing of this opinion.