Pence v. Durbin , 1 Idaho 550 ( 1874 )

Whitson, J.,

delivered tbe opinion.

Hollistee, J., concurred. Nogckle, C. J., dissented.

Tbis action was brought in tbe district court of Ada county, by Stephen Durbin against Peter Pence and E. S. Sterling, to recover tbe damages alleged to have been sustained by reason of the issuing of an injunction in favor of one H. M. Ereeman, against tbe said Durbin, upon the undertaking to wbieb Pence and Sterling bad become sureties. Tbe defendants demurred to tbe complaint upon two grounds: 1. That several causes of action bave been improperly united. 2. Tbe said complaint does not state facts sufficient to constitute a cause of action. Tbe demurrer was overruled, and leave given to tbe defendants to answer tbe complaint, they excepting to tbe decision of tbe court overruling tlie demurrer. Whereupon tbe plaintiff moved tbe court “for judgment on tbe pleadings, on tbe ground that the answer filed herein is irrelevant, inasmuch as it sets forth no defense whatever to the cause of action contained in plaintiffs’ complaint. The motion was sustained and judgment given accordingly.

The defendants now bring their writ of error to this court, and assign as grounds therefor: 1. That the demurrer to the complaint should have been sustained. 2. That the motion for judgment on the pleadings should have been denied.

In support of the first point, it is urged that the bond, not being signed by the principal, Freeman, could not bind the defendants. Section 115 of the civil practice act provides that on granting an injunction, the court or judge shall require, except where the people of. the territory are plaintiffs, a written undertaking on the part of the plaintiff, with sufficient sureties, etc. We think the undertaking in this case sufficient in this particular. The law does not require that the plaintiff shall execute an undertaking with sufficient sureties, but that an undertaking shall be executed on the part of the plaintiff, with sufficient sureties.

Again it is urged that several causes of action have been improperly united. This position we think untenable, as the causes of complaint all grow directly out of the breach of the undertaking, and can be the subject of one action only. Even if such objections were well founded, the defendant, having answered after the overruling of his demurrer, can not make sueh objection here. His right to take any advantage of the defects in the complaint is waived by answering. In such a case, all objections to a pleading are waived by answering, except such as may properly be raised upon a motion in arrest of judgment. (Pierce v. Manturin, 1 Cal. 470; De Boom v. Priestly, Id. 206.)

As to the second ground of error, we think it well taken. The motion for judgment was made upon the ground that the answer was irrelevant and was no defense to the cause of action set up in plaintiffs’ complaint. The answer puts in issue every material allegation in the complaint. It is true, that the plaintiff gives the items of the damages sustained, which in the aggregate amount to two hundred and seventy-two dollars, but sueb items were unnecessary, as all such matters might have been given in evidence under the general allegation of damages' on account of a breach of the undertaking; and therefore, such particularity being entirely surplusage, the defendant was not required to traverse them specifically. (Racouillat v. Rene, 32 Cal. 450.) But it is urged that the verification to the answer is defective, and that per consequence the answer was properly disregarded.

This position can not be sustained. The only way to reach such a defect is by motion to strike out the pleading for want of verification, so that the party may have an opportunity to amend in that respect, if he so desires. The verification is no part of the pleading, but is only a formality required to give it solemnity, and if a party does not make a specific objection to the pleading on that ground, he is presumed to waive it. This is especially so in this case, as the plaintiff in his motion made no objection on that account. (Greenfield v. Steamer Gunnell, 6 Cal. 67; Drum v. Whiting, 9 Id. 422; Nash’s Pr. and Pl. 97.) But in this case we think the verification good. The affidavit is made by Freeman, against whom the injunction was issued, and who swears that the facts stated in the answer are within his personal knowledge, which is one of the cases in which the affidavit may be made by another person than the party.

Freeman does not state that the defendants are absent from the county, or that they are unable to verify the answer, but upon the other ground, provided in section 55 of the civil practice act, that all the facts are within his own personal knowledge. The reason he assigns for making the affidavit, is the very reason why the defendants do not make, or at least one of the reasons why they need not make it. In the reason assigned by him for making the affidavit, is embodied the very reason why the defendants do not make it.

The judgment of the court below is reversed, and cause remanded.