Opinion
01-01-1826
The Commonwealth v. John J. Jackson.[*]
OPINION
This was a Case adjourned to this Court by the Superior Court of Law for Wood county. The whole Case is fully set out in the following opinion of the Court, which was delivered by R. E. Parker, J.
At a Superior Court of Law held for Wood county, on the 29th day of September, 1824, the Defendant was indicted for an assault and battery, committed the 28th of April preceding, on one Christian Schultz, jun. In September, 1825, he appeared and pleaded not guilty, and two special pleas, substantially and almost literally agreeing, insomuch that the Court might well have considered them as one plea, and refused the Defendant leave to file them both. They state, in substance, that the Defendant had been indicted in August preceding the September Term, 1824, for the same offence in the County Court of Wood; that he had pleaded guilty to the Indictment, and been amerced by a jury in the sum of two dollars and fifty cents, for which a judgment had been rendered against him by the said Court in November, 1824. These pleas contain the requisite averments of the identity of the persons, and of the offence, and are in other respects sufficiently formal, although, as before stated, so nearly alike as to present, substantially, the same defence in bar. The Commonwealth's Attorney, at the Spring Term of the present year, 1826, filed replications to each plea, admitting the facts stated therein, but averring that on the 29th of April, 1824, the Defendant had, for this same offence, been bound in a recognizance before the Superior Court of Wood, conditioned for his appearance on the first day of the succeeding Term of the said Superior Court, to answer an Indictment to be then and there preferred against him, for the assault and battery alleged to have been committed by him upon the said Schultz; and that in the mean time, in order that he might plead a conviction in the County Court, in bar of the proceedings instituted in the Superior Court, he caused and procured one James Henderson, of the said county, to prefer an Indictment against him for the same offence, and caused and procured witnesses to be sent to the Grand Jury in said County Court; and that thereby the said Henderson, by the procurement, and with the privity of the Defendant, caused and procured him to be indicted; to which Indictment he pleaded guilty, and was amerced in the sum mentioned in the plea, for which the judgment relied on in bar was rendered. Both these replications conclude thus: " and this the Commonwealth is ready to verify by the records."
The record goes on to state, that thereupon the Defendant rejoined generally to the first special replication, and issue was joined thereon, but demurred generally to the second replication, and the Attorney for the Commonwealth joined in demurrer.
The questions of Law arising upon the demurrer of the Defendant to the special replication of the Attorney for the Commonwealth, are adjourned to this Court for novelty and difficulty, and its opinion requested thereon.
If there was no objection of form to this replication, we are all prepared to certify to the Court below what perhaps was the real question intended to be submitted, that the demurrer should be over-ruled and the replication adjudged good. We have no doubt, but that the matters stated in the replication, are a sufficient answer to the Defendant's plea. If they are true, the Defendant by an artful and fraudulent contrivance, attempted to oust the Superior Court of its jurisdiction, for purposes which we can readily imagine. The means resorted to, to effect this object, viz: the procuring a pretended prosecutor to institute a sham prosecution; are in themselves utterly subversive of the Criminal Justice of the country, and cannot, for a moment, receive the countenance of this Court. If, where a real and serious prosecution is instituted, a Defendant can escape from its consequences, by such a device; a device adopted by collusion with others, in order that he may be enabled to plead a former conviction in bar of such prosecution (as this replication expressly alleges, it would be better that all the Criminal Laws should be repealed, than that the Courts attempting to enforce them, should exhibit such a mockery of Justice. We are, therefore, unanimously of opinion, that the replication in this Case sets out sufficient matter of substance, to avoid the effect of the plea. But we think that the conclusion of the replication is bad, in point of form. It purports to verify the allegations of the replication, by the records of the County Court, and so refers the trial of the issue to be made up, to the Court, instead of referring it to the jury. In other words, a special, instead of a general verification, is used. Matters of record are indeed alleged in the replication as parts of the defence to the plea, but they are mixed up with matters in pais, and are only used as inducement to the facts relied on to avoid the plea. The conclusion ought, notwithstanding, to have been in the usual form, and not in the manner here stated. If, indeed, this was a Civil Case, this defect, or imperfection of form, would not be regarded, unless specially alleged in the demurrer as cause thereof, by virtue of the Act of Assembly in such case provided, (see 1 Rev. Code, § 101, p. 511,) copied from the English Statute of 27 Elizabeth, c. 5. But this Act does not extend to Criminal Cases, and therefore, in such cases, defects or imperfections of form, may be taken advantage of on general demurrer, such as is filed to the replication in question. The consequence is, that the demurrer must be sustained, unless the Attorney for the Commonwealth asks and obtains leave to withdraw his joinder in demurrer, and amend his replication in this particular; but if he chooses to adopt that course, we entertain no doubt of the propriety, at this stage of the proceedings, of the Court's giving him leave to amend.
The following is to be entered as the judgment of the Court:
" This Court is of opinion, and doth decide, that the demurrer of the Defendant to the replication of the Attorney for the Commonwealth, ought to be sustained; the said replication although good in substance, being defective in form, in concluding with a verification by the record; unless the said Attorney askes leave to withdraw his joinder in demurrer, and amend his replication, which the Court below ought not to refuse: and if the informality is cured by amendment, and the Defendant does not withdraw his demurrer, the Court is further of opinion, that it ought to be over-ruled and a judgment of respondeat ouster rendered."
DEMURRERS.
Scope Note.--The subject of demurrers is very uniform at common law, in equity and in criminal causes, with and in the absence of the code modifications. There is nothing peculiar in the nature of a demurrer at common law to differentiate it from demurrers in chancery or criminal procedure. Some slight variations in use occur, and the code provisions make some distinction, but, upon the whole, the general principles underlying the subject apply to all alike.
For convenience and utility demurrers in the several causes have been specially treated, but it should not be inferred from this that they are necessarily exclusive of each other, or that the governing principles are wholly dissimilar.
Where there is any distinguishing feature the attention is directed to it. Cross reference is freely made to the first division of the subject, " Demurrers at Common Law and under the Code," as the main principles with the code modifications are there embodied.
A. AT COMMON LAW AND UNDER THE CODE.
I. Defined.
II. Nature of a Demurrer.
A. Functions in General.
B. Lies Only for Objections Apparent on Face of Pleading.
C. Pleading Demurred to Controls.
D. Demurrer Too Broad.
1. In General.
2. Whole Count When Matter Divisible.
3. Misjoinder of Counts.
III. Kinds of Demurrer.
A. In General.
B. General Demurrer.
C. Special Demurrer.
IV. Joinder.
V. Form of Demurrer.
VI. Specifying Causes.
VII. Time of Filing.
VIII. Effect of Demurrer.
A. Appearance.
B. Compels the Court to Search the Whole Record.
1. Statement of Rule.
a. In General.
b. Extent.
2. Defects Reached and Questions Raised.
a. Office Judgments.
b. Scire Facias.
c. Declaration in Ejectment.
d. Raises Question Whether Certain Work Constitutes a Nuisance.
C. Admissions.
1. What Is Admitted by Demurrer.
2. What Demurrer Does Not Admit.
IX. Hearing.
X. Statute of Limitations.
A. As a General Rule a Demurrer Cannot Be Interposed--Reason for Rule. 1. In General. 2. Exceptions to the Rule. B. Who May Demur.
XI. Misjoinder of Causes.
XII. Want of Sufficient Facts.
A. Declaration.
1. In General.
2. Allegations and Averments.
3. Nonjoinder of Plaintiffs.
B. Plea.
XIII. Effect of Sustaining.
XIV. Overruling Demurrer and Effect.
XV. Defects Not Reached by Demurrer.
A. Duplicity.
B. Misjoinder of Parties.
C. Defective Statement of Cause of Action.
D. Variance.
E. Bill of Particulars.
F. Affidavit.
XVI. Defects Waived by Failure to Demur.
XVII. Waiver of Demurrer.
XVIII. Demurrer in Conjunction with Plea.
XIX. Frivolous Demurrer.
XX. Abandonment of Demurrer.
B. IN EQUITY.
XXI. In General.
A. Definition.
B. Consideration of Demurrer.
XXII. Nature and Office of Demurrer.
A. In General.
B. Demurrer Too Extensive.
C. When Based on Question of Law.
D. Founded on Matters of Fact Extrinsic to Bill.
1. In General.
2. Speaking Demurrer.
XXIII. Form.
XXIV. Time of Filing.
XXV. Admissions.
XXVI. Demurrers to Relief.
A. To the Jurisdiction.
B. To Matter of Bill.
1. In General.
2. Want of Title in Plaintiff.
3. Laches.
4. Multifariousness.
5. Misjoinder of Parties.
6. Nonjoinder of Parties.
XXVII. Objections Not Proper.
XXVIII. Who May Demur.
XXIX. Demurrer in Conjunction with Other Defenses.
XXX. Sustaining Demurrer.
XXXI. Overruling the Demurrer.
A. In General.
B. Effect of Overruling.
C. Answer after Demurrer Is Overruled.
D. When Overruling Presumed or Implied.
E. Order Overruling.
F. Effect of Final Decree in Overruling.
XXXII. Defects Waived by Failure to Demur.
C. IN CRIMINAL CASES.
XXXIII. Nature.
XXXIV. Effect of Demurrer.
XXXV. Form of Demurrer.
XXXVI. Overruling.
XXXVII. What Defects Reached.
A. In General.
B. Defects of Form.
C. Allegations and Averments.
XXXVIII. Statute of Limitations.
Cross References to Monographic Notes.
Abatement, Pleas in, appended to Warren v. Saunders, 27 Gratt. 259.
Answers in Equity Pleading, appended to Tate v. Vance, 27 Gratt. 571.
Indictments, Informations and Presentments, appended to Boyle v. Com., 14 Gratt. 674.
Laches, appended to Peers v. Barnett, 12 Gratt. 410.
Multifariousness, appended to Sheldon v. Armstead, 7 Gratt. 264.
A. AT COMMON LAW AND UNDER THE CODE.
I. DEFINED.
A demurrer (from the Latin demorari or French demorrer, to wait, or stay) imports, according to its etymology, that the objecting party will not proceed with the pleading, because no sufficient statement has been made on the other side; but will wait the judgment of the court whether he is bound to answer. St. Pl. (Andrew's Edition) § 67.
II. NATURE OF A DEMURRER.
A. Functions in General. --The function of a demurrer is to raise a question of law as to the sufficiency of the facts stated, in point of form or substance, which questions must arise upon the face of the pleading to which the demurrer is interposed. Price v. Via, 8 Gratt. 79.
B. Lies Only for Objections Apparent on Face of Pleading. --A demurrer only lies to matter which is apparent upon the face of the record or pleading. Consequently a demurrer can never be founded on matter collateral to the pleading to which it is opposed, and must therefore as a general rule be decided without reference to extraneous matter. In some cases collateral matter may be reviewed by consent of parties. See Russell Creek Coal Co. v. Wells, 96 Va. 416, 31 S.E. 614; Lewis's v. Hicks, 96 Va. 91, 30 S.E. 466; Price v. Via, 8 Gratt. 79.
C. Pleading Demurred to Controls. --The principle is established that when a pleading is demurred to resort cannot be had to other pleading for the purpose of supporting or opposing the demurrer. The demurrer stands or falls by the face of the pleading towards which it is directed.
But it is not always easy to determine what constitutes the pleading demurred to. In Lewis's v. Hicks, 96 Va. 91, 30 S.E. 466, it is held that where a statute requires a plea to be verified by affidavit, and the affidavit is omitted, a demurrer to the plea does not bring the affidavit to the attention of the court. In Lockhead v. Berkeley, 40 W.Va. 553, 21 S.E. 1031, an exhibit in the case was held to be a part of the pleading. So in Wright v. Smith, 81 Va. 777, accounts filed with a declaration under authority of Va. Code 1873, § 13, were held a part of the declaration. But a bill of particulars is no part of the declaration or pleading. Columbia, etc., Ass'n v. Rockey, 93 Va. 678, 25 S.E. 1009. However, the rule is otherwise, where the parties agree in writing that the case made by the declaration may be supplemented by the bill of particulars. King v. N. & W. Ry. Co., 99 Va. 625, 39 S.E. 701.
And in considering the demurrer to the declaration in Hart v. B. & O. Ry. Co., 6 W.Va. 336, it was held that if the acts of the legislature incorporating the defendant could be considered private acts, it was competent for the court to read and consider the acts on their being brought to its attention by the plaintiff's attorney.
D. Demurrer Too Broad.
1. In General. --A demurrer which is too large, that is to say, which reaches the whole pleading, cannot be sustained if the pleading is good in part, and this rule applies alike to the declaration or complaint and to all subsequent pleading; and if a declaration though defective in part, contain one good count, a general demurrer to the whole declaration will be overruled and the same principle is held to apply to single divisible counts. Hollingsworth v. Milton, 8 Leigh 50; Wright v. Smith, 81 Va. 777; Smith v. Lloyd, 16 Gratt. 295; Nutter v. Sydenstricker, 11 W.Va. 535; Thompson v. Boggs, 8 W.Va. 63; Simmons v. Trumbo, 9 W.Va. 358; Robrecht v. Marling, 29 W.Va. 765, 2 S.E. 827; Smith v. Co. Ct., 33 W.Va. 713, 11 S.E. 1; Wheeling v. Black, 25 W.Va. 266; Newlon v. Reitz, 31 W.Va. 483, 7 S.E. 411; Sheppard v. Peabody Ins. Co., 21 W.Va. 368; Standiford v. Goudy, 6 W.Va. 364.
And if there be several counts in a declaration, one good and all the rest bad, and a general demurrer is filed to the whole declaration, the demurrer ought to be overruled. Power v. Ivie, 7 Leigh 147; Hollingsworth v. Milton, 8 Leigh 50; Gray v. Kemp, 88 Va. 201, 16 S.E. 225; Henderson v. Stringer, 6 Gratt. 130; Wright v. Michie, 6 Gratt. 354; Roe v. Crutchfield, 1 H. & M. 361; Elliott v. Hutchinson, 8 W.Va. 452; Thompson v. Boggs, 8 W.Va. 63; Grubb v. Burford, 98 Va. 553, 37 S.E. 4; Bank v. Beirne, 1 Gratt. 539. This rule is questioned in Jarrett v. Jarrett, 7 Leigh 93.
So where there are two or more counts in a declaration and a demurrer is entered to each count separately, they must be respectively regarded as separate declarations; and the demurrers to defective counts ought to be sustained, whatever may be thought of the rest. Burkhart v. Jennings, 2 W.Va. 242.
2. Whole Count When Matter Divisible. --Where the matter in a single count is divisible in its nature, the demurrer should be confined to those parts which are defective, as the same general rule which applies to different counts applies, also, to the divisible matter in the same count constituting different causes of action.
Thus, in Clark v. Ohio R. R. Co., 34 W.Va. 200, 12 S.E. 505, it was held that where the declaration contains but one count, and that sets out a demand of several matters, which in their nature are divisible, any one of which is well claimed, that is sufficient, and a general demurrer to the whole declaration should be overruled. Wheeling v. Black, 25 W.Va. 266; Robrecht v. Marling, 29 W.Va. 765, 2 S.E. 827; Newton v. Reitz, 31 W.Va. 483, 7 S.E. 411.
3. Misjoinder of Counts. --If the objection be to a misjoinder of counts the demurrer lies to the whole declaration; for if the plaintiff has joined in his declaration causes of action which the law does not allow to be joined, the objection is no more applicable to one count, or part of a count, than to any other, but goes to the whole declaration. Henderson v. Stringer, 6 Gratt. 130.
III. KINDS OF DEMURRERS.
A. In General. --A demurrer in point of form, either avers simply that the adversary's pleading, is not sufficient in law, in which case it is known as a general demurrer, or it adds to that general averment a specification of the errors imputed to the pleading demurred to, when it is denominated a special demurrer. Stephens' Pl. § 107.
B. General Demurrer. --A general demurrer is one which raises an objection without specifying any particular cause or defect, and is sufficient only to reach matters of substance. Hord v. Dishman, 2 H. & M. 600.
C. Special Demurrer. --Special demurrers had their origin under the statutes of 27 Eliz. ch. 5, and 4 Anne, ch. 16. It was provided that merely formal defects could not be taken advantage of unless specifically pointed out in the demurrer. Thus a distinction was made between material defects which went to the substance of the pleading, and those errors which were merely technical and formal. But assigning special causes for demurrer does not make a demurrer special, which in its nature is general Miller v. McLuer, Gilmer 338. Special demurrers have been abolished in civil cases by statute in Virginia and West Virginia, except as to pleas in abatement. Grayson v. Buchanan, 88 Va. 251, 13 S.E. 457; C. & O. Ry. Co. v. Rison, 99 Va. 18, 37 S.E. 320; Coyle v. B. & O. Ry. Co., 11 W.Va. 94; Cook v. Dorsey, 38 W.Va. 196, 18 S.E. 468.
IV. JOINDER.
Form of Joinder.--The form of a joinder in demurrer may be " the defendant (or plaintiff) says, that the declaration (or plea, etc.) is not (or is) sufficient in law. Va. Code 1887, § 3271; W.Va. Code 1899, ch. 125, § 23.
What Is Deemed a Sufficient Joint Joinder.--In a suit against two defendants, the process was served on one only; a plea was filed, appearing, on its face, to be the joint plea of both; to which the plaintiff demurred; describing it as " the said plea of the said defendant" : the transcript of the record stated " that the defendants by counsel filed the following joinder, to wit, and the said defendant, for that he hath sufficient matter in law to bar the plaintiffs from having their said action against him, etc., prays judgment," & c. It was determined, that the word " defendant," in the demurrer did not restrict it to the plea of one defendant only; and that the joinder was by both defendants. See Chinn v. Heale, 1 Munf. 63, and Freelands v. Royall, 2 H. & M. 575.
Effect of Nonjoinder--When Judgment Not Reversed.--When there is a demurrer to a declaration and no formal joinder therein appears to have been entered of record, but the record shows that the parties appeared by their attorneys, and the matters of law arising upon the defendant's demurrer to the plaintiff's declaration, was argued by counsel, and considered by the court, and was overruled, although it may have been irregular for the court to act upon the demurrer without joinder therein being entered of record, still the judgment of the court below will not be reversed for this cause, if the declaration is good. Hart v. B. & O. R. R. Co., 6 W.Va. 336.
Omission of Joinder Not Available in Appellate Court.--The joinder in demurrer not being added is not an available error in an appellate court, when the demurrer has been argued and decided on its merits below without the objection being made. Hart v. B. & O. R. R. Co., 6 W.Va. 336.
Withdrawal of Joinder.--It is the usual course when the opinion of the court is in favor of the defendant on a demurrer to the whole declaration, to allow the plaintiff to withdraw his joinder in the demurrer, and amend his declaration, if the ground upon which the demurrer is sustained is of such a nature, as can be removed by an amendment. And there is no difference in this respect at common law or by statute between penal, and other actions. Hart v. B. & O. R. R. Co., 6 W.Va. 336.
V. FORM OF DEMURRER.
The form of a demurrer may be: " The defendant (or plaintiff) says, that the declaration (or plea, & c.) is not (or is) sufficient in law." Va. Code 1887, ch. 159, sec. 3271; W.Va. Code 1899, ch. 125, sec. 28. This form is sufficient, and the demurrer need not specify the causes. Cook v. Dorsey, 38 W.Va. 196, 18 S.E. 468. But a demurrer must in all civil cases be in writing. Poll. Suppl. (1900), § 3271.
VI. SPECIFYING CAUSES.
The W.Va. Code 1899, ch. 425, § 29, does not require causes of demurrer to be specified in a written demurrer; but, if none are assigned, it gives the court the right to ask an assignment of causes ore tenus or written, or, on overruling the demurrer, to state that none were assigned. Cook v. Dorsey, 38 W.Va. 196, 18 S.E. 468. See Poll. Suppl. (1900), § 3271.
VII. TIME OF FILING.
The general rule is that after the declaration, the parties must at each stage demur, or plead by way of traverse, or by way of confession and avoidance. Stephens' Pleading, p. 137; 4 Min. Inst. (3d Ed.) 1101.
This being the requirement the question is raised at what time must a demurrer be filed to comply therewith. In Coyle v. B. & O. Ry. Co., 11 W.Va. 94, it is held that a general demurrer is a plea, and may be filed within the same time that any other plea may be received where no other plea has been entered. See B. & O. R. Co. v. Morehead, 5 W.Va. 293.
But after issue joined on any plea, it is too late to file a special demurrer. Roane v. Drummond, 6 Rand. 182. See Jarrett v. Nickell, 4 W.Va. 276.
And after the court of appeals has passed upon a case, and remanded the cause for a new trial upon the general issue, a demurrer to the declaration, or a plea in abatement upon the ground that the Christian names of the respective parties are not mentioned therein, ought not to be received. Lanier v. Cocke, 6 Munf. 580.
VIII. EFFECT OF DEMURRER.
A. Appearance. --It is a well-settled rule that a defendant by appearing and pleading, or taking or assenting to a continuance, waives all defects in the process and in the service thereof. By so doing he makes himself a party to the record, and thereby recognizes the case as in court, and it is too late for him afterwards to say he has not been regularly brought into court. Atlantic & Danville Ry. Co. v. Peake, 87 Va. 130, 12 S.E. 348; Harvey v. Skipwith, 16 Gratt. 410; Barger v. Buckland, 28 Gratt. 850.
B. Compels the Court to Search the Whole Record.
1. Statement of Rule.
a. In General.--The demurrer requires the whole record to be searched by the court, and judgment given against him who made the first fault in pleading. Baird v. Mattox, 1 Call 257; Callis v. Waddy, 2 Munf. 511; Day v. Pickett, 4 Munf. 104. And as held in Doolittle v. Co. Court, 28 W.Va. 158, this rule in pleading is also applicable to pleadings in mandamus cases. Smith v. Walker, 1 Wash. (VA) 135.
Therefore, when pleadings terminate in a demurrer on either side, any error in the previous pleadings, on either side, may be taken advantage of. Roane v. Drummond, 6 Rand. 182.
Thus, if a replication be insufficient, and demurred to as such, yet, if the plea be also insufficient, the court will go up to the first fault, and give judgment for the plaintiff. Kirtley v. Deck, 3 H. & M. 388.
So upon demurrer taken by a plaintiff to a plea, the court goes back to the first fault, and if plaintiff's declaration is defective, gives judgment for defendant on the demurrer; nor is the defect cured by the defendant pleading over. Bennett v. Giles, 6 Leigh 316.
b. Extent.
Demurrer to Declaration.--On a general demurrer to a declaration, the court always looks to the substantial meaning of its allegations, to ascertain if it states a good cause of action. Mowry v. Miller, 3 Leigh 561.
But in passing on the sufficiency of a declaration on demurrer, superfluous allegations contained therein may always be disregarded. Ocheltree v. McClung, 7 W.Va. 232.
And in considering a demurrer to a declaration, where oyer is craved of the bond sued upon, the court can only look at the declaration and bond, and if words in the bond without the addition of extraneous facts, are insensible, they will be treated as surplusage. Smith v. Lloyd, 16 Gratt. 295.
Effect on Declaration of Demurrer to Plea.--A demurrer to a plea can only operate upon the declaration, as a demurrer to the whole thereof, and if one count be good, the demurrer will be overruled. Smith v. Lloyd, 16 Gratt. 295.
2. Defects Reached and Questions Raised.
a. Office Judgments.--On the authority of the case of Syme v. Griffin, 4 H. & M. 277, it is said that a judgment in the office is allowed to be set aside by a general demurrer to the declaration.
b. Scire Facias.--A demurrer to a scire facias upon a recognizance of special bail, is regular practice. Garland v. Ellis, 2 Leigh 555.
Thus, objections to a scire facias to revive a suit, should be by plea, or demurrer, or if, at the hearing, the party does not entitle himself to revive the suit, it may be dismissed. Vaughan v. Wilson, 4 H. & M. 480.
c. Declaration in Ejectment.--The defendant may demur to the plaintiff's declaration in ejectment, as in personal actions. Va. Code, § 2734; W.Va. Code, ch. 90, § 13.
d. Raises Question Whether Certain Work Constitutes a Nuisance.--Whether or not the work in which city officials are engaged when a nuisance, complained of, is created, is within the powers of the city, may be raised by demurrer to the declaration, as judicial notice will be taken of its charter. Duncan v. City of Lynchburg, 2 Va. Dec. 700.
C. Admissions.
1. What Is Admitted by Demurrer. --It is a cardinal rule of the law of pleading that a demurrer admits all and only such facts as are sufficiently or well pleaded. Newberry Land Co. v. Newberry, 95 Va. 111, 27 S.E. 897.
2. What Demurrer Does Not Admit. --But it does not admit that the construction of a written instrument as averred in the pleading, when the instrument is set forth in the pleading and can be inspected, is the true one; nor that the purpose ascribed to the parties thereto, when the same is not justified by its language, is correct; nor that the parol understanding, which varies or contradicts the written instrument set out in the pleading, and on which it is found, is competent or admissible. Newberry Land Co. v. Newberry, 95 Va. 111, 27 S.E. 897.
IX. HEARING.
Rule of Hearing When Demurrer and Plea Are Filed at the Same Time.--This question was first raised in Green v. Dulany, 2 Munf. 518 (1811). The rule is, and was, after that case established, that where there is a general demurrer to the declaration and also an issue of fact, the regular course is to decide the demurrer first, because, if the demurrer to the whole declaration be sustained, there would be no utility in trying the issue of fact, or, whatever might be the verdict of the jury, the defendant would be entitled to the judgment in his favor.
In this case the lower court allowed the issue of fact to be first tried by a jury, and then the demurrer was taken up and argued. As the rule would indicate this proceeding was erroneous. And in the appellate court the judgment was reversed. There were other errors, though, besides this irregularity as to the time of hearing the issue of law. In a later case, Jones v. Stevenson, 5 Munf. 1 (1814), the general rule of practice as laid down in Green v. Dulany, 2 Munf. 518, was followed. But the court in commenting on Green v. Dulany said: " We do not understand the opinion of the court, however, in that case (Green v. Dulany), as deciding that this irregularity would of itself, be sufficient to reverse a judgment to which there should be no objection."
In Cooke v. Thornton, 6 Rand. 7 (1827), the general rule that the demurrer should first be heard was again affirmed. But the qualification was added, that, although this be the regular course yet if the court proceed differently, and try the issue of fact, and then overrule the demurrer, that will not be sufficient cause to reverse the judgment; provided the demurrer was such, that it ought to have been overruled, or ought not to have been sustained. These cases when considered together are harmonious.
X. STATUTE OF LIMITATIONS.
A. As a General Rule a Demurrer Cannot Be Interposed--Reason for Rule.
1. In General. --It is well established as a general rule that one cannot avail himself of the defence of the statute of limitations, either in law or in equity, by demurrer, even though the claim appears on the face of the declaration or bill to be barred; it must be pleaded. Tazewell v. Whittle, 13 Gratt. 329; Herrington v. Harkins, 1 Rob. 591; Colvert v. Millstead, 5 Leigh 88; Smith v. Pattie, 81 Va. 654; Gibson v. Green, 89 Va. 524, 16 S.E. 661; Hubble v. Poff, 98 Va. 646, 37 S.E. 277; Riddle v. McGinnis, 22 W.Va. 253; Seborn v. Beckwith, 30 W.Va. 774, 5 S.E. 450. And as held in these two latter cases, this has been the settled rule in actions at law for more than two hundred years, citing Puckle v. Moor (1672), Vent. 191; Gould v. Johnson (1702), 2 Ld. Raym. 838.
In Lambert v. Ensign Mfg. Co., 42 W.Va. 813, 26 S.E. 431, it is said, that " The reasons generally given are that it is personal, and may be waived, and must be pleaded, or in some way be shown to be relied on, and that it cannot be reached at common law by a demurrer, because the pleader makes out his case as far as he needed at first to go, without withdrawing it from saving clauses, or setting up matters in confession and avoidance of the statutory bar." And a further reason is that it would take from the plaintiff his right to reply by way of confession and avoidance, as he must necessarily join in the demurrer, when tended. The bar of the statute may be removed in some cases after the limitation has affected the remedy, and this the plaintiff should be allowed to show if he so desires.
2. Exceptions to the Rule.
When Demurrer Will Lie. --In Layne v. Norris' 16 Gratt. 236, it is held that where the defendant has been in adverse possession of personal property for the statutory period and has thereby acquired title thereto he may set up the statute under the general issue.
And when the limitation of the statute extinguishes the right as well as the remedy it may be taken advantage of by demurrer. For instance, the institution of an action to recover damages under the statute giving an action for death by wrongful act is a right created by statute, and does not exist independently of it. The period prescribed by the statute for bringing the action is an essential part of the right and to claim the right the statute must be fully complied with. If it appears upon the face of the declaration that the action has not been instituted within the prescribed period, then it is apparent that the conditions upon which the right depends have not been performed, therefore no right can exist, as the statute is absolute and without qualification. This being true, the plaintiff has nothing that he can set up in confession and avoidance which would avail as a defence, consequently a demurrer may be interposed, as the usual cause for refusing it is not present in such case. Lambert v. Ensign Mfg. Co., 42 W.Va. 813, 26 S.E. 431. See also, McCartney v. Pot. El. Co., 94 Va. 198, 26 S.E. 419.
B. Who May Demur. --The general rule is, that when the statute may be availed of, it is a personal privilege of the defendant, and it is optional with him whether he chooses it as a means of defence. The court has no power to interpose ex mero motu, nor can persons who are interested indirectly, as creditors, for instance, compel the defendant to use it as a defence. Smith v. Hutchinson, 78 Va. 683; Lambert v. Ensign Mfg. Co., 42 W.Va. 813, 26 S.E. 431.
However, there are exceptions to this general rule. Thus, as held in McCartney v. Pot. El. Co., 94 Va. 198, 26 S.E. 419, where a court of equity has taken possession of a debtor's estate for the purposes of distribution, and proceeds to ascertain the debts and incumbrances to enable it properly to administer and distribute the assets, an exception to the general rule is allowed, and any creditor interested in the fund is permitted to interpose the defence of the statute of limitations. See Smith v. Pattie, 81 Va. 654; Tazewell v. Whittle, 13 Gratt. 329; Ayre v. Burke, 82 Va. 338; Blair v. Carter, 78 Va. 621.
XI. MISJOINDER OF CAUSES.
A demurrer will lie to a declaration where it appears on its face that there has been a misjoinder of actions. Wheeling v. Trowbridge, 5 W.Va. 353; Creel v. Brown, 1 Rob. 265.
XII. WANT OF SUFFICIENT FACTS.
A. Declaration.
1. In General.
Sufficient Facts Must Be Shown on Face.--If a declaration shows on its face that the facts stated are not sufficient to constitute a cause of action, a demurrer will lie. Dimmey v. Wheeling, etc., Co., 27 W.Va. 32. See Dun v. S. & R. Ry. Co., 78 Va. 645; N. & W. Ry. Co. v. Wysor, 82 Va. 250; Cooke v. Simms, 2 Call 39.
But if a declaration is artificially drawn, beginning for instance quod cum, yet if nothing essential to the action be omitted, and there is a demurrer to the declaration, it will be overruled. Roanoke Nat. Bank v. Hambrick, 82 Va. 135; Blaine v. C. & O. Ry. Co., 9 W.Va. 252; Dorsey v. Shepherd, 9 W.Va. 57; Richmond Traction Co. v. Hildebrand, 99 Va. 48, 34 S.E. 888; State v. Harmon, 15 W.Va. 115.
What omissions are, and what are not deemed essential to the action, are illustrated in the cases set forth in subheads immediately following.
Variance between Declaration and Bond.--To take advantage by demurrer, of a variance between the declaration and the bond declared on, the defendant must crave oyer of the bond. Sterrett v. Teaford, 4 Gratt. 84. See Macon v. Crump, 1 Call 575.
Words Inadvertently Omitted from Instrument Sued on--Endorsement Changed--Effect.--When it is obvious on the face of the paper, that a word or phrase has been omitted by mistake, or inadvertence, and such words are obviously and naturally suggested, upon the mere inspection of the paper, as the words the parties must have intended to use to express their meaning, such word, or words of like import, may be supplied. Thus, in Peyton v. Harman, 22 Gratt. 643, P executed his bond to H for $ 5,500 payable with interest one year after date. On the bond there was an endorsement that one twenty-fifth of the principal of the bond with the interest due at the end of the year, and so on from year to year, the credit not exceeding twenty-five years in all. H brought debt upon the bond against P, and declared upon the bond omitting the endorsement. P craved oyer of the bond and endorsement, and demurred. It was held that the words " to be paid" had been obviously omitted from the endorsement by mistake, and they would be supplied. And the endorsement changed the contract, from the contract to pay in a year to a contract to pay the same amount in twenty-five annual payments; and the demurrer should be sustained.
2. Allegations and Averments.
Action of Debt--Nonpayment Not Averred.--A general demurrer will lie to a count in a declaration, in an action of debt which fails to aver nonpayment of the debt. Simmons v. Trumbo, 9 W.Va. 358.
And in Vandiver v. Hyre, 5 W.Va. 414, it was held that the demurrer, which was entered after the bond had been introduced in evidence and oyer had been prayed and allowed, should have been sustained, becaused it failed to allege the nonpayment of the debt by the co-obligors, against whom suit had been brought. In the subsequent case of Reynolds v. Hurst, 18 W.Va. 648, this case was directly overruled, the court saying, " I am of the opinion to overrule the case of Vandiver v. Hyre, 5 W.Va. 414, and to hold, that if there had been an averment of the nonpayment of the penalty of the bond by the defendant, in this case it would have been sufficient without averring nonpayment by the other parties, who signed this bond."
Error in Stating Amount of Note Sued on.--And a count in a declaration on a promissory note, alleging that the maker, by his promissory note, promised to pay the plaintiff $ 6,000 (meaning and intending thereby $ 4,000) by reason whereby he became liable to pay $ 4,000, is bad on general demurrer. Mer. & Mech. Bk. v. Evans, 9 W.Va. 373.
Omission of Sum for Which Note Was Given.--But in an action upon a protested negotiable note against the makers and endorsers, the accidental omission of the sum for which the note was given, in the description of it in the declaration, where it appears from other parts of the declaration, is not ground of demurrer. Archer v. Ward, 9 Gratt. 622.
Wrongful Demand of Interest.--Yet in debt on a decree for money which does not give running interest thereon, if the declaration demands interest from the date of the decree, as part of the debt, the declaration will be held bad on general demurrer, for demanding interest as part of the debt. Shelton v. Welsh, 7 Leigh 175.
Malicious Prosecution--Elements Substantially Charged.--In an action for malicious prosecution, the fourth count of the declaration substantially alleged that maliciously, and without any probable cause, the defendant had plaintiff arrested on a warrant procured by defendant from a United States commissioner, by whom, upon consideration of all the evidence, he the plaintiff was acquitted and discharged, and that the prosecution was wholly ended and determined. To this count defendant demurred, but the demurrer was overruled. Jones v. Finch, 84 Va. 204, 4 S.E. 342.
Libel--Allegations in Connection with Innuendo.--The inducement in a declaration in a libel suit was, that the plaintiff had been the general superintendent of a certain corporation. The libelous writing was alleged to be as follows: " The plaintiff was, through his own and his brothers' influence, placed and retained in the general management of said corporation during the years of 1871, 1872 and 1873 for their own private and individual gain, and not the corporation's; that especially during the year 1873 the plaintiff in the libel suit did use, and employ, the goods, money, means and credit of the said corporation for his own use, and his brothers' private use, business and benefit; that he took the goods and money of the said corporation to pay his own employees; that he borrowed money, and used it in his own business, and gave said corporation's notes therefor; that he and his wife purchased goods, wares and merchandise of divers persons and at various times during the years 1871 and 1872, and especially during the year 1873, for their own and friends' use, and had them charged to the corporation." The allegations being set forth in the declaration, the innuendo was: " Thereby meaning that the plaintiff had embezzled the goods and money of said corporation." The allegations without any innuendo would be libelous in themselves; and the innuendo improperly extended the meaning of these words. And if the publication of these words had been all that was complained of in the declaration, the general demurrer to the declaration ought to have been sustained. Johnson v. Brown, 13 W.Va. 71.
But if such a declaration alleged the publication of a writing in these words: " The said plaintiff in the slander suit, and others, have been, and are, conspiring to defraud the other stockholders in said corporation, to divert the means, money and credit of the corporation to their own individual use and ends, and against the interest and welfare of the other stockholders in the said corporation; " and the innuendo is, " thereby meaning, that the plaintiff, while acting as the general superintendent and agent of said corporation, defrauded the said corporation, and conspired with other persons to defraud and cheat said corporation," this language without any innuendo was libelous; and the innuendo did not extend the meaning of the words. And as this allegation is in its nature distinct and divisible from the others, the defendant could not properly demur to the whole declaration, and such a demurrer ought to be overruled. Johnson v. Brown, 13 W.Va. 71.
Action of Covenant--Eviction Not Alleged.--A declaration not averring that the plaintiff was evicted, or kept out of possession by one in possession under paramount title, is bad on demurrer. Marbury v. Thornton, 82 Va. 702, 1 S.E. 909.
And a demurrer lies to an action of covenant on a trust deed executed merely as collateral security for the payment of a promissory note. Wolf v. Violett, 78 Va. 57.
Trespass on the Case--Allegation That Accident Occurred " at, near or upon the Crossing." --It is proper to overrule a demurrer to a declaration grounded on the statement that the place of the accident was " at, near, or upon the crossing." Tyler v. Kelley, 89 Va. 282, 15 S.E. 509.
Trespass--When Cause Sufficiently Alleged.--A declaration in an action of trespass, for assault and battery, and false imprisonment, which alleges the cause of complaint sufficiently to make known to the defendant what he is to answer to, so that judgment, according to law and the very right of the case, could be given, is sufficient, in substance, and a demurrer thereto should be overruled. Carskadon v. Williams, 7 W.Va. 1.
Assumpsit--Insurance Policy--Allegation of Interest in Property.--In an action of assumpsit on a policy of insurance, it is necessary for the plaintiff to allege an interest in the property insured, which is insufficiently done by the allegation that the defendant insured the plaintiff's property. Such a declaration having alleged that the loss was to be paid in sixty days after proof and notice given the defendant, in the manner required by the policy, it is necessary for the declaration to allege this manner, and that such proof and notice were accordingly given. And a failure to make these allegations, or the allegation of interest, is fatal to the declaration on general demurrer. Quarrier v. Peabody Insurance Company, 10 W.Va. 507.
3. Nonjoinder of Plaintiffs.
Joint Contractors.--If one of several joint contractors be omitted as plaintiff, and the omission appear on the pleadings, advantage thereof may be taken by demurrer, motion in arrest of judgment, or writ of error. Prunty v. Mitchell, 76 Va. 169. But a misjoinder of parties is not a good ground of demurrer under the present statute. Lee v. Mutual, etc., L. Ass'n, 97 Va. 160, 33 S.E. 556.
B. Plea.
Fraudulent Misrepresentation--No Averment of Injury.--Where a plea avers no injury to a defendant from the fraudulent misrepresentation as to the lot referred to in it, a demurrer lies to the plea. Lake v. Tyree, 90 Va. 719, 19 S.E. 787.
Plea Designed to Entrap.--In an action of debt on a sheriff's official bond in the name of a certain A, successor of a certain B, governor of Virginia, to whom the bond was given, there was a plea, that A was not, and that a certain C was, the successor of B, and there was a demurrer to the plea. The court held that though the plea was obviously designed to entrap, the demurrer should be overruled. Bennett v. Giles, 6 Leigh 316.
Detinue--Joint Action--Judgment against One--Plea of Discharge.--R brings an action of detinue against two, and gives bond under the statute in order to take possession of the property: in order to retain it they give bond with security to have the property forthcoming to answer the judgment. In an action upon the bond the defendant pleads in bar, that judgment was against one only, and that he was thereby discharged. A demurrer to this plea was properly sustained. Reynolds v. Hurst, 18 W.Va. 648.
Plea in Abatement--Defective in Form.--A general demurrer to a plea in abatement ought to be sustained, though the plea be defective in point of form only. Mantz v. Hendley, 2 H. & M. 309.
XIII. EFFECT OF SUSTAINING.
Judgment upon Demurrer--Amendment of Pleadings--Grounds of Demurrer--Waiver--In General.--By the common law as stated by Blackstone and Stephens, it seems that upon a general demurrer, the judgment was final. 3 Bl. Com. p. 398; Stephens' Pl. § 97.
In Virginia it is now the rule of practice, when a demurrer to a plea in abatement is sustained for the judgment to be respondeat ouster; or if sustained to any other plea, the defendant is by leave of court allowed to withdraw the plea, and enter a sufficient plea as a substitute, or if he has filed other pleas, as he may, under Va. Code, § 3264, he can fall back upon them. Cromer v. Cromer, 29 Gratt. 280; Reid v. Field, 83 Va. 26, 1 S.E. 395; Creel v. Brown, 1 Rob. 265; Strange v. Floyd, 9 Gratt. 474; Hamtramck v. Selden, 12 Gratt. 28; Clarke v. Day, 2 Leigh 172. See Curran v. Owens, 15 W.Va. 208; Smith v. Co. Court, 33 W.Va. 713, 11 S.E. 1.
If there be but one plea, however, and the demurrer to that be sustained, the defendant if he has any other defence, may plead further; but if he has no other defence, judgment may be rendered, if it be such a case as that judgment by default might have been rendered on it; otherwise a writ of inquiry must be executed. Clarke v. Day, 2 Leigh 172; C. & O. Ry. Co. v. Rison, 99 Va. 18, 37 S.E. 320.
And if a demurrer to a declaration be sustained, leave is also granted the plaintiff to amend the declaration upon terms. Baylor v. B. & O. Ry. Co., 9 W.Va. 270; Darracott v. C. & O. Ry. Co., 83 Va. 288, 2 S.E. 511; White v. Ry. Co., 26 W.Va. 800; Roanoke, etc., Co. v. Karn, 80 Va. 589.
And where a demurrer to a declaration has been overruled in the court below, there being a judgment for the plaintiff, and upon appeal the judgment is reversed and the demurrer sustained, the cause will be sent back with leave to the plaintiff to amend his declaration. Fitzhugh v. Fitzhugh, 11 Gratt. 210. See, in accord, Hale v. Crow, 9 Gratt. 263; Strange v. Floyd, 9 Gratt. 474; White v. Toncray, 5 Gratt. 179.
And, it is held in Rigg v. Parsons, 29 W.Va. 522, 2 S.E. 81, that where an inferior court properly sustains a demurrer to a declaration, and enters judgment in the action for the defendant, without giving leave to the plaintiff to amend, the appellate court will, if the defect in the declaration appears to be amendable, reverse the judgment, and remand the case, with directions to grant leave to the plaintiff to amend if he elects to do so.
But it is a well-settled rule that where a demurrer to a declaration or plea, has been sustained and the party is permitted to amend or substitute, which he does, and goes to trial on the merits, he waives all exceptions to the ruling of the court in sustaining the demurrer, and cannot take advantage in an appellate court of any grounds of exception to the ruling of the lower court in sustaining the demurrer. These are the terms which are imposed by the court in granting the amendment or substitution. Harris' v. N. & W. R. Co., 88 Va. 560, 14 S.E. 535; Roanoke, etc., Co. v. Karn, 80 Va. 589; Darracott v. C. & O. Ry. Co., 83 Va. 288, 2 S.E. 511; Hopkins v. Richardson, 9 Gratt. 485; Connell v. C. & O. Ry. Co., 93 Va. 44, 24 S.E. 467; Birckhead v. C. & O. Ry. Co., 95 Va. 648, 29 S.E. 678.
It is said, that the only case where it might profit the defendant not to demur, is where the declaration does not state any cause of action at all, " not merely states it defectively." Where if a verdict were against him he could move in arrest of judgment; if the motion be sustained, final judgment will be entered for the defendant and of course it would be too late for the plaintiff to amend. Roanoke, etc., Co. v. Karn, 80 Va. 589.
Demurrer to Replication Improperly Filed--Judgment for Defendant Generally Is Erroneous.--In a debt on a bond with collateral condition, if the plaintiff, by replication to the plea of conditions performed, charge the breach defectively, but fully avoid, by other replications, such other pleas of the defendant as go to the foundation of the action, to which replications demurrers are improperly filed, and the court enter judgment for the defendant, generally, upon all the pleadings, such judgment is erroneous; it should only be that the faulty replication is not sufficient in law, etc., and therefore that the plaintiff take nothing, etc. Lane v. Harrison, 6 Munf. 573.
Plea Answering Whole Declaration--Judgment on Demurrer to Replication.--If a plea be to the whole declaration, and the defendant's demurrer to plaintiff's replication to such plea be sustained, judgment will be given that plaintiff take nothing by his bill, and that defendant recover against him his costs. Thus, in an action of detinue, defendant pleaded that the cause of action did not accrue within five years next before action brought. Plaintiff's reply admitted averment of plea, but alleged subsequent acknowledgment by defendant of title in plaintiff made within five years. The defendant demurred to this replication. The demurrer was properly sustained. Va. Code 1873, ch. 146, § § 10 and 20; Morris v. Lyon, 84 Va. 331, 4 S.E. 734. See Jarrett v. Nickell, 4 W.Va. 276.
Several Counts in Declaration--Demurrer to One and Issue in Fact to Others--Judgment.--If in a declaration there are several counts, to one of which the defendant demurs, and joins issue in fact upon the others, and the court sustains the demurrer, final judgment is not to be given for the defendant, as if there was only one count in the declaration, but the cause should be re-remanded for further proceedings on the other counts. Cooke v. Simms, 2 Call 39, 374.
XIV. OVERRULING DEMURRER AND EFFECT.
Practice to Withdraw Demurrer, and Reply by Traverse or Confession and Avoidance.--It is the practice in Virginia, when the plaintiff demurs to the defendant's plea and the demurrer is overruled, to permit the plaintiff to withdraw the demurrer and reply to the plea by traverse, or by way of confession and avoidance. And where a plea in bar is to the whole declaration, and upon demurrer the court is of opinion that the plea is sufficient, unless the plaintiff move for leave to withdraw his demurrer, and reply, the demurrer will be overruled and final judgment entered for the defendant. Maggort v. Hansbarger, 8 Leigh 532. But it is hazardous for the plaintiff to demur to a plea, since, if his demurrer is overruled, and he then obtains leave to withdraw it, and traverses the plea, or replies by way of confession and avoidance, he is considered to have waived his demurrer, and cannot object to the legal sufficiency of the plea in the appellate court. The proper course for the plaintiff to pursue in order to avoid this is, instead of demurring, to object to the reception of the plea and move to reject it; and if his motion is overruled he may except to the opinion of the court, and make his exception a part of the record by a bill of exceptions, and then reply to the plea in point of fact. In this way there is no waiver and the plaintiff saves to himself in the appellate court, the benefit of his objection to the plea. Harris' v. Harris, 23 Gratt. 737; Reid v. Field, 83 Va. 26, 1 S.E. 395; Va. F. & M. Ins. Co. v. Buck, 88 Va. 517, 13 S.E. 973. The defendant, however, by Va. Code 1887, sec. 3264, is permitted to accompany his demurrer with as many several pleas as he wishes, and if the demurrer is overruled, he can, of course, fall back upon the pleas filed. And judgment ought not to be entered without first trying the issues joined on the pleas. Waller v. Ellis, 2 Munf. 88.
What Defects Cured When Demurrer Is Overruled.--Where there has been a demurrer to any pleading and the same has been overruled, sec. 3246 of the Va. Code 1887 cures no defect, imperfection or omission therein, except such as could not have been regarded on demurrer. Thus, where a declaration in assumpsit is deficient for its failure to show any consideration, and the demurrer thereto is overruled, the defect is not cured by the Va. Code 1887, sec. 3246, providing that no action shall abate for want of form where the declaration sets forth sufficient matter or substance of the court to proceed on the merits, as the statute only applies to such defects as could not be cured on demurrer. Southern Ry. Co. v. Willcox, 98 Va. 222, 35 S.E. 355; W.Va. Code 1899, ch. 134, sec. 3.
Several Counts--Demurrer to One, Which Is Bad, Overruled--Verdict Set Aside.--Where one of three counts is bad and a demurrer thereto is overruled, and there is a verdict which may have been on that count, the verdict should be set aside. Richmond & Danville R. R. Co. v. Scott, 88 Va. 958, 14 S.E. 763. But in Hood v. Bloch, 29 W.Va. 244, 11 S.E. 910, the declaration contained several counts, and there was a demurrer to each count, which the court overruled, though some of the counts were good and some bad. Upon appeal the evidence was all certified, and it was held that though it was error to overrule the demurrer to the bad counts, yet as the appellate court was satisfied that all the plaintiff's evidence was admissible under the good counts it would not reverse the judgment, as it did not appear that the error was to the defendant's prejudice.
When Refusal to Receive Is Equivalent to Overruling.--After issue joined, a defendant tendered a demurrer to the declaration, which was objected to because it came too late, and the objection was sustained; and it was held that the refusal was equivalent to overruling the demurrer after it had been filed. For if a declaration is sufficient to enable the court to proceed to judgment according to law and the very right of the case, a demurrer should be overruled; and as in such case a defendant's rights cannot be prejudiced by overruling the demurrer, he is not injured by the refusal, as he has the same remedy in either case. B. & O. R. R. Co. v. Morehead, 5 W.Va. 293. See, in general connection, Lane v. Black, 21 W.Va. 617.
Necessity of Excepting When Overruled.--It is unnecessary to except to the opinion of a trial court overruling a demurrer to a declaration. Russell Cr. C. Co. v. Wells, 96 Va. 416, 31 S.E. 614.
Effect of Judgment on a Verdict.--A judgment on a verdict for the plaintiff, virtually overrules all demurrers to the declaration and each count thereof. Hood v. Maxwell, 1 W.Va. 219.
XV. DEFECTS NOT REACHED BY DEMURRER.
A. Duplicity. --Until the revision of the Code of 1849, which took effect July 1, 1850, duplicity in pleading could be taken advantage of by a special demurrer. The Code of 1849 virtually abolished special pleas, except as to pleas in abatement, so that neither in Virginia nor West Virginia can duplicity in a plea, except as to pleas in abatement, be reached by demurrer. See Mantz v. Hendley, 2 H. & M. 308, decided before the Code of 1849; Cunningham v. Smith, 10 Gratt. 255; Poling v. Maddox, 41 W.Va. 779, 24 S.E. 999. Neither can duplicity in a declaration be taken advantage of by demurrer. Kimball v. Borden, 95 Va. 203, 28 S.E. 207; Martin v. Monongahela R. Co., 48 W.Va. 542, 37 S.E. 563; Va. Code 1887, sec. 3272; W.Va. Code 1899, ch. 125, sec. 29; Mutual Fire Ins. Co. v. Ward, 95 Va. 231, 28 S.E. 209.
B. Misjoinder of Parties. --Misjoinder of parties is not a good ground of demurrer. Lee v. Mutual, etc., L. Assoc., 97 Va. 160, 33 S.E. 556. Prior to Acts 1895-96, the contrary doctrine was maintained. See Abernathy v. Phillips, 82 Va. 769, 1 S.E. 113; Vaiden v. Stubblefield, 28 Gratt. 153.
C. Defective Statement of Cause of Action. --If a declaration contain several good causes of action, some of which are defectively stated, a demurrer thereto is properly overruled. Trump v. Tidewater C. & C. Co., 46 W.Va. 238, 32 S.E. 1035.
D. Variance.
Between Declaration and Instrument Sued on--Not Apparent on Face.--Where in a declaration of a policy of insurance the name of the plaintiff is different from the name of the person to whom the policy sued on appears to have issued, but the variance does not appear on the face of the declaration, such variance cannot be reached by a demurrer to the declaration. Harvey v. Parkersburg Ins. Co., 37 W.Va. 272, 16 S.E. 580.
E. Bill of Particulars. --It is no grounds for demurrer that a bill of particulars is omitted (Sheppard v. Peabody Ins. Co., 21 W.Va. 368), or that the bill of particulars is too vague (Abell v. Penn. Mut. L. Ins., 18 W.Va. 400), as a bill of particulars is no part of the declaration or pleading. Columbia, etc., Ass'n v. Rockey, 93 Va. 678, 25 S.E. 1009.
F. Affidavit. --Where a statute requires a plea to be verified by affidavit and the affidavit is omitted, a demurrer to the plea does not bring the affidavit to the attention of the court, as it is no part of the plea. Lockhead v. Berkeley, Springs W., etc., Co., 40 W.Va. 553, 21 S.E. 1031.
XVI. DEFECTS WAIVED BY FAILURE TO DEMUR.
Facts Sufficient to Constitute a Cause of Action.--The rule is that a judgment will not be reversed for any defect, imperfection, or omission in the pleadings, unless in the court below there was a demurrer. Va. Code 1873, ch. 77, § 3; W.Va. 1899, ch. 134, § 3. See Holliday v. Myers, 11 W.Va. 276; Smith v. Knight, 14 W.Va. 749; B. & O. Ry. Co. v. Faulkner, 4 W.Va. 180; McSmithee v. Feamster, 4 W.Va. 673; Campbell v. Hughes, 12 W.Va. 183; Douglass v. Cent. L. Co., 12 W.Va. 502; Feamster v. Withrow, 9 W.Va. 296.
Consequently the statute cures errors, which could have been the subject of demurrer, but which are waived by a failure to interpose. But a failure to state any cause of action at all, is not cured by the statute, when there is no demurrer. Roanoke L. & J. Co. v. Karn, 80 Va. 589.
Misjoinder of Counts.--Counts ex delicto cannot be joined in the same declaration without counts ex contractu. Such misjoinder makes the declaration bad on demurrer. But unless a demurrer has been filed and overruled, such misjoinder will not be ground for motion in arrest of judgment or writ of error. The defect is waived by failure to demur, and is thereby cured by the statute. N. & W. Ry. Co. v. Wysor, 82 Va. 250.
XVII. WAIVER OF DEMURRER.
Pleading over to a declaration adjudged good on demurrer is regarded as a waiver of the demurrer. Thus, in Roach v. Gardner, 9 Gratt. 89, it is held, that in an action at law if the defendant demurs to the declaration, and afterwards agrees the facts, and the court renders a judgment upon the case agreed, he thereby waives his demurrer to the declaration. And when no demurrer is filed to a declaration, which states a good cause of action, in the lower court, no errors can be assigned in the appellate court because of supposed defects. Alvey v. Cahoon, 86 Va. 173, 9 S.E. 994.
Moreover, as a plaintiff cannot both demur and reply to a plea to the jurisdiction, when he replies after a demurrer to the plea is overruled, the demurrer cannot be considered on appeal. C. & O. Ry. Co. v. Amer. Ex. Bk., 92 Va. 495, 23 S.E. 935.
XVIII. DEMURRER IN CONJUNCTION WITH PLEA.
The common law did not allow a party to demur and plead to the same matter. This rule has been changed by statute so as to allow a defendant to plead as many several matters, whether of law or fact, as he shall think necessary. Nadenbousch v. Sharer, 2 W.Va. 285; Va. Code 1887, § 3264; W.Va. Code 1899, ch. 125, § 21.
No previous leave of court is required, and, therefore, the defendant is at liberty to present pleas repugnant one to the other; or he may also plead and demur at the same time to the same declaration. Waller v. Ellis, 2 Munf. 88; Bassett v. Cunningham, 7 Leigh 402; Maggort v. Hansbarger, 8 Leigh 532; Va. Code 1887, § 3270; W.Va. Code 1899, ch. 125, § 21.
But as to subsequent stages of the pleading there has been no change made in the common law by the statute. The privilege is extended to the defendant only, and may be taken advantage of only at the one stage of the pleading. Stone v. Patterson, 6 Call 71; Syme v. Griffin, 4 H. & M. 277; James River & K. Co. v. Robinson, 16 Gratt. 434.
The plaintiff can make but one answer, either of law or fact, at any stage, to each plea. Lang v. Lewis, 1 Rand. 277.
It was improperly held in Eppes v. Smith, 4 Munf. 466, that the plaintiff could file a demurrer and general replication to the same plea.
And in Jones v. Stevenson, 5 Munf. 1, it was left a query; but in subsequent cases the quaere in Jones v. Stevenson has been answered in the negative, and the case of Eppes v. Smith overruled. Lang v. Lewis, 1 Rand. 277; C. & O. Ry. Co. v. American Exch. Bank, 92 Va. 495, 23 S.E. 935.
To the general principle of avoiding duplicity, there is as respects the declaration, even at common law, a qualification growing out of the occasional employment of several counts purporting to be founded on distinct demands; and in respect to the plea, three qualifications present themselves, one arising out of the obvious necessity of allowing a distinct answer to each count where there is more than one count; another depending on the doctrine that where there are several defendants, one may plead one matter, and another, another matter, for the same cause of action, thus severing as it is called, in their defense; and the third, where the defendant proposes to put his defense to one part of the plaintiff's demand on one ground and to another part on a different ground. And of course, in any of these cases where there are several pleas, one replication by traverse, confession and avoidance, or demurrer, is allowed the plaintiff to each plea. Stephens' Pl. 256-7; 1 Chitty's Pl. 687; 4 Min. Inst. 738.
Effect of Filing Demurrer and Plea to the Same Plea.--If the plaintiff both demur and plead to the same plea, or the defendant do likewise after the first stage of the pleading, the question arises as to the mode in which this objection can be taken advantage of. It is held in Cunningham v. Smith, 10 Gratt. 255, that duplicity cannot be taken advantage of by general demurrer; and by Virginia Code 1887, § 3272, special demurrers have been abolished except as to pleas in abatement. There is authority in both Virginia and West Virginia for the view that duplicity can only be taken advantage of by special demurrer. Grayson v. Buchanan, 88 Va. 251, 13 S.E. 457, is authority for the proposition that duplicity can only be taken advantage of at common law by a special demurrer, and, this is not available now in Virginia, except as to pleas in abatement. And it is intimated in Sweeney v. Baker, 13 W.Va. 158, and in Coyle v. Ry. Co., 11 W.Va. 94, that the objection of duplicity can only be brought to the notice of the court by special demurrer. However, in Little Kanawha, etc., Co. v. Rice, 9 W.Va. 636, a special plea was rejected because it was double; and in Harris v. Harris, 23 Gratt. 737, it was held that the ruling of the lower court rejecting a plea presenting several distinct issues of fact should be sustained. See O'Bannon v. Saunders, 24 Gratt. 138. Also, see Va. F. & M. Ins. Co. v. Saunders, 86 Va. 969, 11 S.E. 794. Though the cases until recently have been unsettled in regard to the course to be pursued in order to take advantage of duplicity, it is now resolved, at least in Virginia, by the recent case of C. & O. Ry. Co. v. Rison, 99 Va. 18, 37 S.E. 320. It is held in this case, that as special demurrers have been abolished, a motion to strike out or reject can be used to obviate faults in pleading, such as duplicity and the like, which cannot now be raised by demurrer. See Reed v. Hanna, 3 Rand. 56.
XIX. FRIVOLOUS DEMURRER.
When a demurrer to a declaration is overruled, and the order overruling it shows the fact that nothing was alleged by the demurrant in support of his demurrer, and final judgment is obtained by the plaintiff in the case, the judgment will not be reversed by reason of any defect in the declaration. Koontz v. Koontz, 47 W.Va. 31, 34 S.E. 752.
XX. ABANDONMENT OF DEMURRER.
In Vaiden v. Bell, 3 Rand. 448, a special demurrer and pleas were filed to the same declaration. Afterwards, the joinder in demurrer was withdrawn, and the declaration was amended in the point specified in the demurrer, and issues were joined on the same pleas. No further notice was taken of the demurrer, and a verdict was rendered on the issues. The demurrer to the first declaration should have been considered as abandoned, and the pleas to the first declaration as insisted on by the defendant as pleas to the second.
B. IN EQUITY.
XXI. IN GENERAL.
A. Definition--See ante, " Demurrers at Common Law and under the Code."
B. Consideration of Demurrer. --The whole facts of a case appearing from the records of other ended causes exhibited by the plaintiff with his bill, the court may pass upon it, on a demurrer to a bill, without requiring the defendant to set out his defence in an answer. Young v. McClung, 9 Gratt. 336.
XXII. NATURE AND OFFICE OF DEMURRER.
A. In General. --A demurrer is an answer in law to a bill, but not in the technical sense in which it is used in practice.
It is founded exclusively upon grounds apparent on the face of the bill, or of the documents filed therewith, and not upon extrinsic matter. Its object is to avoid a discovery which may injuriously affect the interests of the defendant, to cover a defective title, or to prevent unnecessary expense: or to test the sufficiency of the case as stated in the bill. Harris v. Thomas, 1 H. & M. 18; Alderson v. Biggars, 4 H. & M. 473; Young v. Scott, 4 Rand. 416; N.W. Bank v. Nelson, 1 Gratt. 108; Young v. McClung, 9 Gratt. 336; Towner v. Lucas', 13 Gratt. 705; Henderson v. Lightfoot, 5 Call 241; Pickens's v. Kniseley, 36 W.Va. 794, 15 S.E. 997.
And it is considered a plea to the jurisdiction. Pryor v. Adams. 1 Call 382.
B. Demurrer Too Extensive.
Applications of Rule--Several Grounds of Relief.--Where a bill in chancery sets forth various claims, and the defendant files a general demurrer, the demurrer will be overruled, if any of the claims be proper for the jurisdiction of a court of equity. Castleman v. Veitch, 3 Rand. 598.
Thus, where a bill in equity sets forth various claims by distinct and separate paragraphs, and the defendant files a general demurrer, such demurrer will be overruled if any of the claims be proper for the jurisdiction and cognizance of the court in that form of proceeding; but when there is a demurrer to the whole bill, and also specifically to each of the several claims set out therein, and a part of those claims so demurred to are of such a character as to authorize no relief in such a suit, the court should sustain the demurrer in part, and should dismiss so much of the bill as seeks relief in reference to matters adjudged bad, and overrule the demurrer as to the residue, and give a rule against the defendant to answer the bill as to such residue. Gay v. Skeen, 36 W.Va. 582, 15 S.E. 64.
However, it is sufficient, on demurrer, to sustain a bill of injunction to stay waste and prevent the removal of improvements, that the bill alleges that complainant is the owner and is entitled to the possession of the premises with improvements, and that defendants are in possession and threaten to destroy the improvements, and that they are insolvent, and unable to respond in pecuniary damages. Frank v. Brunnemann, 8 W.Va. 462.
C. When Based on Question of Law. --To justify the court in sustaining a demurrer to a bill, the ground of the demurrer must be a short dry point of law, upon which it is clear, that the bill will be dismissed with costs at the hearing; if the evidence to be taken might sustain the relief asked with some modification, the demurrer ought to be overruled, and the case stand to the hearing to be disposed of on its merits. Tavenner v. Barrett, 21 W.Va. 656.
D. Founded on Matters of Fact Extrinsic to Bill.
1. In General. --A demurrer will not lie to an objection which is not apparent upon the face of the bill, or documents which form a part of it. If it is not apparent the defendant should show it by plea or answer. Harris v. Thomas, 1 H. & M. 17; Barr v. Clayton, 29 W.Va. 256, 11 S.E. 899.
Thus, a demurrer will not lie to the equity jurisdiction where a bill alleges that the defendant, who has possession of personal property claimed by the complainant under a contract with the defendant, is insolvent and is fraudulently converting the property to his own use, and asks to enjoin the defendant, and for an account. Brakeley v. Tuttle, 3 W.Va. 86.
2. Speaking Demurrer.
Introduces New Facts.--A demurrer cannot introduce new facts in support of itself. When it is defective in this regard, it is called a speaking demurrer, and will be overruled. Harris v. Thomas, 1 H. & M. 17.
XXIII. FORM.
A demurrer to a bill in equity, in the form given in the statute, is sufficient. Jones v. Clark, 25 Gratt. 642. And if in this form it is asserted in the answer, it is sufficient. Dunn v. Dunn, 26 Gratt. 291. See W.Va. Code 1899, ch. 125, § 28.
But a statement in the answer of a defendant that he reverses " unto himself all just exceptions to the many deficiencies by a demurrer to a bill" is not a demurrer to the bill. Matney v. Ratliff, 96 Va. 231, 31 S.E. 512.
Demurrers in all civil cases are required to be in writing. Va. Code 1887, § 3271; Poll. Suppl. 1900, General Acts, p. 19.
XXIV. TIME OF FILING.
Where there has been no unreasonable delay in making the motion, the court may, at its discretion, allow an answer to be withdrawn and a demurrer filed to the bill. Weisiger v. Rich. Ice M. Co., 90 Va. 795, 20 S.E. 361. For more general treatment, see ante, " Demurrers at Common Law and under the Code."
XXV. ADMISSIONS.
The general rule applicable in common-law pleading applies to demurrers in chancery, and as there is nothing peculiar regarding admissions of demurrers in chancery, reference is, therefore, made to this title, ante, " Demurrers at Common Law and under the Code."
XXVI. DEMURRERS TO RELIEF.
A. To the Jurisdiction. --A demurrer to a bill may be filed where some other court, as for instance a court of law, has jurisdiction. Surber v. McClintic, 10 W.Va. 236.
B. To Matter of Bill.
1. In General. --Where a bill asserts no valid claim, or an objection appears upon its face, a demurrer to it will be sustained. Lefew v. Hooper, 82 Va. 946, 1 S.E. 208; Tardy v. Creasy, 81 Va. 553; N.W. Bank v. Nelson, 1 Gratt. 108. See also, Switzer v. McCulloch, 76 Va. 777.
Thus, a borrower of money at usurious rates secured the loan by a deed of trust on real estate, which he subsequently sold to another, who assumed the loan as a part of the purchase price. The purchaser gave another deed of trust on the land to secure certain notes for the balance of purchase money, some of which the original purchaser held. The original borrower then filed his bill to enjoin a sale under the first deed of trust, on the ground of usury in the original loan. The bill did not aver the insolvency of complainant's grantee, or his inability to pay the debt assumed by him, nor that the lands would not sell for enough to pay all the debts secured thereon, including the debt assumed, nor that in such event the original creditor would have a right of action over against the complainant. The bill was held bad on demurrer. Saunders v. Balto. B. Fund Assoc., 99 Va. 140, 37 S.E. 775.
And where a creditor's bill has been filed against the administrator, devisees and legatees, and a decree for an account has been made in the cause, no other creditor of the estate can maintain a separate suit in another court for the satisfaction of his debt. And if the bill shows he had knowledge of the decree for an account in the first suit, his suit will be dismissed upon demurrer to the bill. Kent v. Cloyd, 30 Gratt. 555; Saunders v. Griggs, 81 Va. 506.
In Lefew v. Hooper, 82 Va. 946, 1 S.E. 208, B deeded his real estate to a trustee for the benefit of his wife during her life, and, after her decease, for the benefit of his own son and her two sons by a former husband. After the wife's decease, while B was still alive and sound in mind, his son filed a bill to annul the deed on the ground that it had been procured by the wife's undue influence. The bill was held to assert no valid claim, and was, therefore, rightly dismissed on demurrer.
However, it should be observed, in this connection, that a court of equity has jurisdiction to enforce a vendor's lien on land for the unpaid purchase money represented by a bond, though it has been lost; and while its loss and that it cannot be found on search may be properly stated in the bill and supported by affidavit, yet the failure to make such allegation would be no ground of demurrer, as it may afterwards be done on the defendant's motion, or these facts may be shown in the progress of the cause. Robinson v. Dix, 18 W.Va. 528.
2. Want of Title in Plaintiff. --It is a fundamental rule that where a bill in equity fails to show in the party suing an interest in the subject-matter and a proper title to institute a suit concerning it, the bill is demurrable. Carter v. Carter, 82 Va. 624; Keyser v. Renner, 87 Va. 249, 12 S.E. 406; Switzer v. McCulloch, 76 Va. 777. If not apparent it may be taken advantage of by plea or answer. Barr v. Clayton, 29 W.Va. 256, 11 S.E. 899.
3. Laches. --Since the disuse of special replications in equity practice, if a bill in equity shows on its face that the relief it prays for is barred by the lapse of time, advantage may be taken of such bar by demurrer as well as by plea. Jackson v. Hull, 21 W.Va. 601; Paxton v. Paxton, 38 W.Va. 616, 18 S.E. 765; Whittaker v. S. W.Va. Imp. Co., 34 W.Va. 217, 12 S.E. 507.
4. Multifariousness. --See monographic note on " Multifariousness" appended to Sheldon v. Armstead, 7 Gratt. 264.
5. Misjoinder of Parties. --Case at bar is one where there was a misjoinder of parties, plaintiff and defendant, and a bill wholly without equity, that was properly dismissed on demurrer. Abernathy v. Phillips, 82 Va. 769, 1 S.E. 113; Vaiden v Stubblefield, 28 Gratt. 153.
But by the more recent decision in Lee v. Mutual, etc., L. Ass'n, 97 Va. 160, 33 S.E. 556, misjoinder of parties is held not to be a good ground of demurrer. The word may in the act of February 26, 1896 (Acts 1895-'96, p. 453), means shall.
6. Nonjoinder of Parties. --All persons materially interested in the subject of controversy ought to be made parties in equity; and if they are not, the defect, when apparent on the face of the record, may be taken advantage of, either by demurrer, or by the court at the hearing, or in the appellate court. Lynchburg Iron Co. v. Tayloe, 79 Va. 671; Shen. Val. Nat. Bank v. Bates, 20 W.Va. 210; Neely v. Jones, 16 W.Va. 625; Clark v. Long, 4 Rand. 451; Hill v. Proctor, 10 W.Va. 59. See Armstrong v. Court, 15 W.Va. 190.
But a demurrer to a bill for such cause should properly name the necessary parties defendant, who have been omitted, so as to enable the plaintiff to amend his bill and call the attention of the court to this defect; and if it does not, the demurrant cannot complain that the demurrer is not sustained; but the court ought in the final hearing of the cause, though the demurrer has been overruled, to decline to determine the cause on its merits, until the necessary parties defendant have been brought before the court by an amendment of the bill and have been given the opportunity to be heard. Robinson v. Dix, 18 W.Va. 528.
It should be observed that the failure to join as defendant the administrator of one whose death is alleged in the bill is not available on demurrer if the one avers that such personal representative had not at the time of the filing of the bill been appointed. Frank v. Brunnemann, 8 W.Va. 462.
And in a suit by vendors to recover the price of land, a demurrer will not lie for want of proper parties on the ground that the money, when collected, has been appropriated to pay claims against the vendors. Woods v. Ellis, 85 Va. 471, 7 S.E. 852.
XXVII. OBJECTIONS NOT PROPER.
Irrelevancy.--A bill in equity, notwithstanding it contains many vague and irrelevant allegations, will not be held bad on demurrer, if taken as a whole it states facts which entitle the plaintiff to relief. Moore v. Harper, 27 W.Va. 362.
XXVIII. WHO MAY DEMUR.
If a party holding a quasi trusteeship, by reason of holding an instrument as an escrow, does not demur for being made a party to a bill for specific performance of the instrument, it is not for the party against whom the specific performance is sought to demur. Davis v. Henry, 4 W.Va. 571.
XXIX. DEMURRER IN CONJUNCTION WITH OTHER DEFENSES.
A defendant in chancery may, at the same time, answer and demur to the same matter in the bill. Bassett v. Cunningham, 7 Leigh 402; Rosset v. Greer, 3 W.Va. 1. See this title, ante, " Demurrers at Common Law and under the Code."
XXX. SUSTAINING DEMURRER.
Sustained on Grounds of Laches.--A decree sustaining a demurrer to a bill upon the ground of laches, whereby the plaintiff is completely taken by surprise, should be set aside on his motion, when, during the same term of the court, he asks leave to file an amended bill, which fully explains any charge of laches. Cottrell v. Watkins, 89 Va. 801, 17 S.E. 328. See, in general connection, Wayt v. Carwithen, 21 W.Va. 516.
Bill against Nonresident Defendant--Failure to Aver That Attachment Issued.--A demurrer to a bill against an absent defendant will not lie for the failure to aver that an attachment had issued; because the statute in terms provides that this process may issue after the institution of the suit. O'Brien v. Stephens, 11 Gratt. 610.
Injunction to Stay Judgment Obtained after Decease of Plaintiff at Law--Demurrer.--An injunction ought not to be granted on the ground that the plaintiff at law was dead before the judgment was obtained in his name. But this error should be rectified by a writ of error coram nobis. If an injunction be granted in such case, the legal representative of the decedent may demur to the bill, and the demurrer ought to be sustained. Williamson v. Appleberry, 1 H. & M. 206.
Amending Bill Waives Right of Appeal.--Where demurrer has been sustained to a bill, and the bill amended, the plaintiff waives his right to appeal on that ground. Fudge v. Payne, 86 Va. 303, 10 S.E. 7.
To Amended Bill.--An amended or supplemental bill which sets up new matter, entirely different from the original, is demurrable. McComb v. Lobdell, 32 Gratt. 185.
Effect in Appellate Court of Erroneously Sustaining.--Where the trial court has, upon the prayer of a defendant, treated his answer (to which no replication has been filed) as a cross bill, and, subsequently, has erroneously sustained a demurrer to such cross bill, and treated the paper so filed as eliminated from the record for all purposes, this court, upon an appeal, although reversing the ruling on the demurrer, will not give the defendant the relief to which he would have been entitled as upon an answer to which there was no replication, but will remand the cause to the trial court, with leave to the complainants to answer the cross bill, and set up their defence, if any they may have. Spoor v. Tilson, 97 Va. 279, 33 S.E. 609.
XXXI. OVERRULING THE DEMURRER.
A. In General. --A general demurrer to a bill in equity is properly overruled, if the bill as a whole states facts which entitle the plaintiff to relief. Miller v. Hare, 43 W.Va. 647, 28 S.E. 722; Taylor v. Stringer, 1 Gratt. 158; Miller v. R. F. & P. Ry. Co., 1 Va. Dec. 351.
B. Effect of Overruling.
Waiver of Rule to Answer.--A decree overruling a demurrer by the defendant to the plaintiff's bill uses these words, " and the defendant not asking further time to answer said bill." It was held that these words, as construed by the context, are equivalent to the words, " and the defendant not desiring further time," etc., and therefore operated as a waiver of a rule upon the defendant to answer the bill. Mitchell v. Evans, 29 W.Va. 569, 2 S.E. 84.
Setting Demurrer for Argument--Effect When Overruled.--A plaintiff in equity may have any plea or demurrer set down to be argued. If the same be overruled, no other plea or demurrer shall afterwards be received, but there shall be a rule upon the defendant to answer the bill; and if he fail to appear and answer the bill on the day specified in the order, the plaintiff shall be entitled to a decree against him for the relief prayed for therein. W.Va. Code 1899, ch. 125, § 30; Va. Code 1887, § 3273. See also, Northwestern Bank v. Nelson, 1 Gratt. 108; Capehart v. Hale, 6 W.Va. 547; Dorsey v. Shepherd, 9 W.Va. 57; Nichols v. Nichols, 8 W.Va. 174; Sutton v. Gatewood, 6 Munf. 398.
Effect of Offering a Second Demurrer.--The object of pleading is to bring the parties to an issue. If the same plea could again and again be offered, and the court required to consider it after it has once been rejected or overruled, all efforts to reach an issue and trial would be futile. In such case the demurrer having been considered by the circuit court and overruled, it would be clearly erroneous at a subsequent term to entertain the demurrant a second time, sustain the demurrer and dismiss the bill as it did by its decree of May 18th, 1881. Hoge v. Junkin, 79 Va. 220.
C. Answer after Demurrer Is Overruled. --When a demurrer to a bill in chancery is overruled, a decree ought not to be pronounced against the defendant, but leave should be given him to file an answer (Sutton v. Gatewood, 6 Munf. 398; Pecks v. Chambers, 8 W.Va. 210; Nichols v. Nichols, 8 W.Va. 174; Hays v. Heatherly, 36 W.Va. 613, 15 S.E. 223), as defendant is entitled, on obtained leave, to put in an answer to the bill. N.W. Bank v. Nelson, 1 Gratt. 108; Reynolds v. St. Bank, 6 Gratt. 174; Park v. Petroleum Co., 25 W.Va. 108.
So after a special demurrer to a bill, the plaintiff may have leave to amend, on payment of costs. Rose v. King, 4 H. & M. 475.
Leave to answer is usually regulated by statute. See Va. Code 1887, § 3264; W.Va. Code 1899, ch. 125, § 20; Hays v. Heatherly, 36 W.Va. 613, 15 S.E. 223.
These statutes, and rules of court, following a wellsettled rule of chancery practice, also usually provide that if the defendant fails to answer within the time limit the bill may be taken as confessed, and a decree rendered granting the relief prayed. But no decree can be properly rendered until this time has expired. Hays v. Heatherly, 36 W.Va. 613, 15 S.E. 223; Nichols v. Nichols, 8 W.Va. 174; Pecks v. Chambers, 8 W.Va. 210.
D. When Overruling Presumed or Implied.
Principles Adjudicated.--Where the principles of a cause have been adjudicated, the court is presumed to have overruled a demurrer to the bill. Fugate v. Moore, 86 Va. 1045, 11 S.E. 1063.
Thus, where a demurrer is filed to a bill and the court proceeds to adjudicate, and does adjudicate, the principles of the cause, in favor of the plaintiff, without first acting pro forma upon the demurrer, it will be considered that the court in rendering the decree adjudicating the principles of the cause considered the sufficiency of the bill, and substantially overruled the demurrer thereto, and this court will not reverse the decree, adjudicating the principles of the cause, for this cause alone. Hinchman v. Ballard, 7 W.Va. 152.
And where the decree on record does not show that a demurrer has been overruled, that must be presumed, if the court has decided on the merits for the plaintiff. Smith v. Profitt, 82 Va. 832, 1 S.E. 67; Miller v. Miller, 92 Va. 196, 23 S.E. 232; State v. Hall, 40 W.Va. 455, 21 S.E. 760; Bantz v. Basnett, 12 W.Va. 772.
E. Order Overruling. --An order overruling a demurrer to a bill is not appealable. Parsons v. Snider, 42 W.Va. 517, 26 S.E. 285.
F. Effect of Final Decree in Overruling. --" It is well settled, that a point once adjudicated by a court of competent jurisdiction, however erroneous that adjudication, may be relied on as an estoppel in any subsequent collateral suit in the same or any other court, at law or in chancery, when either party, or the privies of either party, allege anything inconsistent with it; and this too when the subsequent suit is upon the same or a different cause of action; nor is it necessary that precisely the same parties were plaintiffs or defendants in the two suits; provided the same subject-matter in controversy, between two or more of the parties, plaintiffs or defendants, to the two suits respectively, has been in the former suit directly in issue and decided. The conclusiveness of the judgment or decree extends, beyond what may appear on its face, to every allegation which has been made on the one side and denied on the other, and was at issue and determined in the course of the proceedings. A decision upon a demurrer, which has clearly gone to the merits of the case, is an effectual bar to further litigation. All the authorities agree that if it appears by the record that the point in controversy was necessarily decided in the first suit, whether upon a demurrer or the facts in issue, it cannot be again considered in any subsequent suit. W. M. & M. Co. v. Va. Cannel Coal Co., 10 W.Va. 250; Coville v. Gilman, 13 W.Va. 314; Beckwith v. Thompson, 18 W.Va. 103." Corrothers v. Sargent, 20 W.Va. 351.
XXXII. DEFECTS WAIVED BY FAILURE TO DEMUR.
Though a bill be multifarious, and but vaguely state the matter on which relief is sought, consent by the parties, to an interlocutory decree that the cause be referred to a commissioner, to audit, state and settle an account of the amount due each of the plaintiffs, is a waiver of any objection to such irregularity; and a demurrer thereafter, for such cause, is properly disallowed. Rittenhouse v. Harman, 7 W.Va. 380. See ante, " Demurrer at Common Law and under the Code."
C. IN CRIMINAL CASES.
XXXIII. NATURE.
In General.--For general treatment of this subject reference is made, ante, " Demurrers at Common Law and under the Code."
Demurrer Too Broad.--A demurrer to an indictment containing two counts, being general, and not to each count thereof, if either count is good it is properly overruled. And the verdict being general, if supported by either count, must stand. Hendricks v. Com., 75 Va. 934; State v. McClung, 35 W.Va. 280, 13 S.E. 654. See Sprouse v. Com., 81 Va. 374; Anthony v. Com., 88 Va. 847, 14 S.E. 834; Dowdy v. Com., 9 Gratt. 727.
XXXIV. EFFECT OF DEMURRER.
In Com. v. Myers, 1 Va. Cas. 188, it is held, that if the prisoner tenders a plea of autrefois acquit, or autrefois convict, and the attorney for the commonwealth demurs to the plea, this is an admission that the record of acquittal or conviction was produced as it ought to have been.
XXXV. FORM OF DEMURRER.
As provided by statute demurrers in criminal cases may be ore tenus. See Poll. Suppl. (1900), § 3271.
XXXVI. OVERRULING.
Ownership Sufficiently Alleged.--It is proper to overrule a demurrer to an indictment charging that " the prisoner, on, etc., a certain mill-house not adjoining to or occupied with the dwelling-house of F," etc., as it sufficiently alleges the ownership of the mill-house to be in F, and is sufficient in law. Webster v. Com., 80 Va. 598. See also, Gedney v. Com., 14 Gratt. 318; Hausenfluck v. Com., 85 Va. 702, 8 S.E. 683.
Plea Autrefois Acquit.--The plea of autrefois convict being replied to specially, the replication which sets forth such fraudulent prosecution and conviction, being well drawn, is a sufficient answer to the defendant's plea, and should be adjudged good on demurrer. Com. v. Jackson, 2 Va. Cas. 501.
Effect of Withdrawal--Condition Precedent to Withdrawal.--Upon a demurrer to an indictment for unlawful gaming being overruled, the defendant cannot have leave to plead not guilty without offering to withdraw his demurrer; the court may, in its discretion, give him leave to withdraw his demurrer, and to plead; but if he does not withdraw his demurrer and obtain leave to plead, judgment should be given for the fine and costs, not that the defendant shall answer over. Com. v. Foggy, 6 Leigh 638.
XXXVII. WHAT DEFECTS REACHED.
A. In General. --No objections to an indictment can be taken advantage of unless they are apparent upon its face. Watts v. Com., 99 Va. 872, 39 S.E. 706.
And upon a demurrer to a scire facias sued out on a forfeited recognizance, the entry of default cannot be looked to in aid of the recognizance. The recognizance must stand alone upon a demurrer. Cannon v. Com., 96 Va. 573, 32 S.E. 33.
But upon a demurrer to an indictment advantage may be taken of all defects therein to the same extent as may be done by motion in arrest of judgment. State v. Ball, 30 W.Va. 382, 4 S.E. 645; Hampton's Case, 3 Gratt. 592; Boyd's Case, 77 Va. 52; Bailey's Case, 78 Va. 19.
B. Defects of Form.
How Objection Raised.--In criminal cases, defects of form in pleading may be taken advantage of by demurrer general or special, as Va. Code 1887, § 3272, does not apply to criminal cases. Com. v. Jackson, 2 Va. Cas. 501; Lazier v. Com., 10 Gratt. 708.
C. Allegations and Averments.
Time.--As a general rule, time of commission of offence, as laid in indictment, is not material, and does not confine the proof to the time laid; but where the time laid is provable by record, and in indictment for perjury, the time must be truly and precisely laid, and failure so to state it renders the indictment demurrable. Va. Code 1873, ch. 201, sec. 5; Rhodes v. Com., 78 Va. 692.
So an indictment found on the eighth day of April, 1884, for adultery and fornication, which charged the defendant with committing the offence on the tenth day of March, 1883, upon general demurrer thereto is fatally defective. State v. Ball, 30 W.Va. 382, 4 S.E. 645.
Felonious Taking--Omission of " Without Consent of Owner." --An indictment under the statute, 1 Rev. Code, ch. 111, § 30, for feloniously and fraudulently taking and removing a slave from one county to another, with intent to defraud the owner and deprive him of his property, was held fatally defective, after verdict, for want of an averment, that the slave was so taken and removed without the consent of the owner. Com. v. Peas, 2 Gratt. 629.
Perjury--Averments of Materiality of Evidence Omitted.--An indictment for perjury must show that the evidence which the defendant gave was material. And therefore if the evidence which the defendant gave before the grand jury is not shown clearly on the face of the indictment to relate to an offence committed within the county, the indictment is defective. Com. v. Pickering, 8 Gratt. 628.
XXXVIII. STATUTE OF LIMITATIONS.
How Taken Advantage of.--If an indictment for an offence, the prosecution of which is by statute limited to a certain time after the offence was committed, shows upon its face that at the time the indictment was found the prosecution of the offence was barred by such statute, it is fatally defective, and the defendant may take advantage of such defect of motion to quash the indictment, or by demurrer thereto, or by motion in arrest of judgment. State v. Ball, 30 W.Va. 382, 4 S.E. 645. [*]For monographic note on Demurrers, see end of case.