Hentsch v. Porter

Citations

• 10 Cal. 555

Syllabus

<p>There are six causes for which a demurrer may be interposed, under section forty of the Code, and unless a ground of demurrer be included under one or more of such causes, it can not be sustained.</p> <p>A default admits only the facts alleged in the complaint.</p> <p>A defective allegation of a fact may be cured by default or verdict ,* but not so the entire absence of any allegation whatsoever.</p> <p>The non-presentation of a claim against the estate of a deceased person, to the administrator, will not deprive the District Court of jurisdiction over such claim.</p> <p>The failure of the plaintiff to allege in his complaint in a suit on such claim, its presentation to and rejection by the administrator, is an objection that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>But the cause of action mentioned in the Code is a present subsisting cause of action, entitling the plaintiff to judgment at the time the action was commenced.</p> <p>A defect which will defeat the plaintiff’s present right to recover, in whole or in part, is a good ground of demurrer.</p> <p>The non-presentation of the claim to the -administrator is, in its nature and effect, nothing more than a matter of abatement. It defeats only the plaintiff’s present right to recover, and such an objection to the complaint must be made for the first time in the Court below.</p> <p>An objection to the complaint that defeats only plaintiff’s present right to recover, must be made in the Court of original jurisdiction, during the term at which the judgment is rendered. But when the defects are of such a serious character as 'to show that plaintiff could not, at any time, obtain any judgment upon the cause of action alleged, then the objection may be made for the first time in the Appellate Court.</p> <p>On re~heariny.—Where an administrator does not set up his privileges -by demurrer or answer, but suffers judgment to go by default, it is a confession that he is properl