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FIRST
DIVISION
VALENTIN SANTOS,
ET AL.,
Plaintiffs-Appellants,
G.
R.
No. 2822
October
30, 1906
-versus-
LEONIZA
YTURRALDE,
ET AL.,
Defendants-Appellees.
D E C I S I
O N
CARSON, J:
Defendants filed a demurrer
to the Complaint in this case on the ground that there was another
action
pending between the same parties for the same cause. No reference was
made
to such action in the complaint, but defendants filed with their
demurrer
certain affidavits in support their allegation.
The demurrer was
sustained
by the trial court and judgment entered dismissing the complaint, and
from
this judgment, the plaintiffs appeal.
One of the grounds
for demurrer set out in Section 91 of the Code Civil Procedure is as
follows:
"(3) That there is
another action pending between the same parties for the same cause;"
But Section 92 provides
that:
"When any of the
matters
enumerated in section ninety-one do not appear upon the face of the
complaint,
the objection can only be taken by answer."
There can be no
doubt that
the trial court erred in sustaining this demurrer on a ground which
does
not appear on the face of the complaint, and of which it had no
knowledge
aside from that furnished by the defendants in the affidavits which
accompany
their demurrer.
Counsel
for defendants
in this Court suggest that the truth of this new matter set up in the
demurrer
was substantially admitted by the plaintiff in his written argument are
not sufficient in such cases to cure a fatal defect in the pleading and
the Court was strictly limited to the allegations of the complaint in
ruling
on a demurrer thereto. In order that new facts might be considered
other
than those set out in the original complaint it would have been
necessary
for the plaintiff to amend his complaint, and the matter set up or
admitted
in his argument of the demurrer can not be considered as such an
amendment.
The
judgment of the
trial court is reversed without special condemnation of costs, and
after
ten days from the filing hereof judgment will be entered in accordance
herewith and the record returned to the Court from whence it came for
proper
procedure. So ordered.
Arellano, C.J.,
Torres, Mapa, Johnson and Tracey, JJ., concur.
Willard, J.,
did not sit in this case. |
