of decision from judges who accept and heartily approve the general principles of interpretation which have been developed in the foregoing discussion.

Plaintiff.

§ 123. * 206. Manner of Raising Question as to Proper Parties Defect of Parties means too Few. Before proceeding to the discussion of particular cases and special rules, a preliminary question may be here properly answered: How can the objection that an action has not been brought by the proper plaintiff or plaintiffs be raised and regularly presented to the court for its decision? The codes of procedure all agree in prescribing, among other grounds of demurrer to the complaint or petition, the following: "When it shall appear on the face of the complaint or petition; 2, that the plaintiff has not legal capacity to sue; or, 4, that there is a defect of parties plaintiff or defendant; or, 6, that the complaint or petition does not state facts sufficient to constitute a cause of action;" and also that, "when any of the matters enumerated in section [the foregoing] do not appear on the face of the complaint or petition, the objection may be taken by answer; "2 and, finally, "if no objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction

1 New York, § 144 (488); Kansas, § 89; Nebraska, § 94; Ohio, § 87; Oregon, § 66; California, § 430; N. C. § 95; S. C. § 167. [Arizona, Rev. St., 1901, § 1351; Arkansas, Sand. & Hill's Dig., § 5717; Idaho, Code Civ. Pro., 1901, § 3206 (including misjoinder as a ground); Iowa, Code, 1897, § 3561; Indiana, Burns' St., 1901, § 342; Kentucky, Codes, 1895, §§ 92, 93; Montana, § 680 (including misjoinder as a ground); Missouri, Rev. St., 1899, § 598 (including misjoinder as a ground); Minnesota, Gen. St., 1894, § 5232; North Dakota, Rev. Codes, 1899, § 5268; Oklahoma, St., 1893, § 3967; Utah, Rev. St., 1898, § 2962 (including misjoinder as a ground); South Dakota, Ann. St., 1901, § 6115; Washington, Bal. Code, § 4907; Wyoming, Rev. St., 1899, § 3535 (including misjoinder as a ground); Wisconsin, St, 1898, § 2649.]

[In Connecticut the statute provides merely that" all demurrers shall distinctly specify the reasons why the pleading demurred to is insufficient." Gen. St., 1902, § 608.]

In the following codes it is made a special cause of demurrer that there is a misjoinder of plaintiffs or defendants. Cal. § 430; Nevada, § 40; Colorado, § 50. Misjoinder of plaiutiffs is now a ground of demurrer in New York, § 488.

2 New York, § 147 (498); Kansas, § 91; Nebraska, § 96; Ohio, § 89; Oregon, § 69; Cal. § 433; N. C. § 98; S. C. § 170. [Arizona, Rev. St., 1901, § 1353, in respect only to the ground numbered 4 in the text; Arkansas, Sand. & Hill's Dig., § 5720; Colorado, § 54; Idaho, Code Civ. Pro., 1901, § 3209; Iowa, Code, 1897, § 3563; Indiana, Burns' St., 1901, § 346; Montana, § 684; Missouri, Rev. St., 1899, § 602; Minnesota, Gen. St., 1894, § 5234; Nevada. § 44; North Dakota, Rev. Codes, 1899, § 5271; Oklahoma, St., 1893, § 3969; Utah, Rev. St., 1898. § 2966; South Da kota, Ann. St., 1901, § 6118; Washington, Bal. Code, § 4909; Wyoming, Rev. St., 1899, § 3537; Wisconsin, St., 1898, § 2653.]

of the court, and the objection that the complaint or petition does not state facts sufficient to constitute a cause of action."1 The construction to be placed upon these clauses, and the resulting rules prescribing the methods by which an objection as to proper parties must be interposed, in order to present a question for judicial decision, have been settled in the various States with almost complete uniformity. In regard to defect of parties plaintiff, the interpretation is now established, that "defect of parties," given as one ground of demurrer, means too few, and not too many. A demurrer alleging this particular objection can only be interposed, therefore, in case of a non-joinder of necessary plaintiffs or defendants, and never in case of a misjoinder. The word "defect" is taken in its literal sense of "deficiency," and not in a broader sense as meaning any error in the selection of parties. Upon this point the courts are nearly unanimous. It has been held, however, in Wisconsin, that this is the proper form of demurrer where the objection is to a mis joinder.

1 New York, § 148 (499); Kansas, § 91; Nebraska, § 96; Ohio, § 89; Oregon, § 70; Cal. § 434; N. C. § 99; S. C. § 171. [Arizona, Rev. St., 1901, § 1353; Arkansas, Sand. & Hill's Dig., § 5720; Colorado, § 55; Idaho, Code Civ. Pro., 1901, § 3210; Iowa, Code, 1897, §§ 3563, 3564 (substantially different from the provision given in the text); Indiana, Burns' St., 1901, $346; Kentucky, Codes, 1895, §§ 92, 93; Montana, § 685; Missouri, Rev. St., 1899, § 602; Minnesota, Gen. St., 1894, § 5235; Nevada, § 45; North Dakota, Rev. Codes, 1899, § 5272; Oklahoma, St., 1893, § 3969; Utah, Rev. St., 1898, § 2967; South Dakota, Ann. St., 1901, § 6119; Washington, Bal. Code, § 4911; Wyoming, Rev. St. 1899, § 3537; Wisconsin, St., 1898, $2654.]

2

[Union Pac. Ry Co. v. Smith (1898), 59 Kan. 80, 52 Pac. 102; Weber v. Dillon (1898), 7 Okla. 568, 54 Pac. 894; Allen v. Cooley (1898), 53 S. C. 414, 31 S. E. 634; Dolan v. Hubinger (1899), 109 Iowa, 408, 80 N. W. 514; Cedar Rapids Nat. Bank v. Lavery (1900), 110 Iowa, 575, 81 N. W. 775.] Palmer v. Davis, 28 N. Y. 242; Case r. Carroll, 35 N. Y. 385; Richtmyer v. Richtmyer, 50 Barb. 55; Powers v. Bum

cratz, 12 O. St. 273; Berkshire v. Shultz, 25 Ind. 523; Bennett v. Preston, 17 Ind. 291; Mornan v. Carroll, 35 Iowa, 22; Hill v. Marsh, 46 Ind. 218. As the same is true of defendants, - the section including both parties in a single formula,

- the decisions in reference to them are in point. See Peabody v. Washington, &c. Ins. Co., 20 Barb. 339; Voorhis v. Baxter, 18 Barb. 592; s. c. 17 N. Y. 354 ; Bank of Havana v. Magee, 20 N. Y. 355. See also Western, etc. Co. v. Ætna Ins. Co., 40 Wis. 373; Marsh v. Board of Supervisors, 38 id. 250; Willard v. Reas, 26 id. 540 (settling the rule as given in the text, and limiting Read v. Sang, 21 id. 678); Schiffer v. Eau Claire, 51 Wis. 385; Lowry v. Jackson, 27 S. C. 318; McKee v. Eaton, 26 Kan. 226; White v. Scott, 26 Kan. 476; Boldt v. Budwig, 19 Neb. 739; Clark v. Crawfordsville Coffin Co., 125 Ind. 277; Evans v. Schafer, 119 Ind. 49; Murray v. McGarigle, 69 Wis. 483.

8 Read . Sang, 21 Wis. 678. The demurrer was held proper upon the authority of an early New York decision, Dunderdale v. Grymes, 16 How. Pr. 195, which has since been many times overruled in that State.

$ 124. * 207. Question of Defect of Parties must be raised by Demurrer or Answer. When a defect of parties plaintiff — that is, a non-joinder- appears on the face of the complaint or petition, the defendant must raise the question by demurrer, and not by answer. If he neglects to interpose a demurrer upon this specific ground, he waives the objection entirely, even though he sets up the defence in his answer. The reason given for this somewhat technical rule is the following: The mere defence of a defect of parties, not going to the real merits of the controversy, and not denying the cause of action existing in some persons, is not favored by the courts; it is regarded as a "dilatory defence," because it does nothing more than postpone the decision of the substantial issues; and, although the defendant is permitted to avail himself of it, he must follow exactly the modes prescribed by the rules of practice, or by the statute for its interposition." If the defect does not appear upon the face of the complaint or petition, the defendant must set up the defence specially in his answer, or, failing this, he waives the objection.3

1 [Foster v. Lyon County (1901), 63 Kan. 43, 64 Pac. 1037; Mason v. St. Paul Fire Ins. Co. (1901), 82 Minn. 336, 85 N. W. 13; Cooper v. Thomason (1896), 30 Ore. 161, 45 Pac. 295; Carskaddon v. Pine (1899), 154 Ind. 410, 56 N. E. 844; Castile r. Ford (1897), 53 Neb. 507, 73 N W.945; Johnson v. Gooch (1894), 114 N. C. 62, 19 S. E. 62; Radant v. Werheim Mfg. Co. (1900), 106 Wis. 600, 82 N. W. 562; Osborn v. Logus (1895), 28 Ore. 306, 42 Pac. 997.

But a demurrer will not lie where the complaint does not show that the party for whose non-joinder the demurrer is interposed was living when the suit was commenced: Deegan v. Deegan (1894), 22 Nev. 185, 37 Pac. 360.]

parties defendant, see Dillaye v. Parks, 31 Barb. 132; Wright v. Storrs, 32 N. Y. 691; s. c. 6 Bos. 600; Abbe v. Clarke, 31 Barb. 238. See also Blakeley v. Le Duc, 22 Minn. 476; Baldwin v. Canfield, 26 id. 43; Gimbel v. Pignero, 62 Mo. 240; Kellogg v. Malin, id. 429; McConnell v. Braynor, 63 id. 461; Dunn v. Hannibal & St. J. R. Co., 68 id. 268; State v. Saffington, id. 454; Donnan v. Intelligencer Co., 70 id. 168; Parchin v. Peck, 2 Mont. 567; Ross v. Linder, 12 S. C. 592; Lillie v. Case, 54 Iowa, 177; Bouton v. Orr, 51 id. 473; Ryan v. Mullin, 45 id. 631; Taylor v. Collins, 51 Wis. 123; Thomas v. Wood, 61 Ind. 132; Cox v. Bird, 65 id. 277; Barnett v. Leonard, 66 id. 422; Davis v. Bechstein, 69 N. Y. 440; Risley v. Wightman, 13 Hun, 163; Porter . Fletcher, 25 Minn. 493; Mackenzie v. Edinburg Sch. Trs., 72 Ind. 191 (an unincorporated association cannot sue by its name; all the members must join as plaintiffs); Beeler v. First Nat. Bk. of Larned (Neb., 1892), 51 N. W. 857; Stelling v. Grabowsky, 19 N. Y. Suppl. 280; McCallister's Adm. v. Sav. Bk. of Louisville, 80 Ky. 684; Talmage v. Bierhause. 103 Ind. 270.

2 Zabriskie v. Smith, 13 N. Y. 322; De Puy v. Strong, 37 N. Y. 372, 3 Keyes, 603; Patchir v. Peck, 38 N. Y. 39; Fisher v. Hall, 41 N. Y. 416; Wells v. Cone, 55 Barb. 585; Hees v. Nellis, 1 N. Y. Sup. Ct. 118; Alexander v. Gaar, 15 Ind. 89; Justice v. Phillips, 3 Bush, 200; Andrews v. Mokelumne Hill Co., 7 Cal. 330; Tennant v. Pfister, 45 Cal. 270; Dailey v. Houston, 58 Mo. 361, 366; McRoberts v. So. Minn. R. R., 18 Minn. 108, 110; Mechanics' Bank v. Gilpin, 105 Mo. 17. As 3 [Johnson v. Gooch (1894), 114 N. C. the same rule applies in case of defect in 62, 19 S. E. 62; Moore v. Harmon (1895),

To sum up: if a defect of parties plaintiff appears in the pleading, the mode of raising the defence is by demurrer alone; if it does not appear in the pleading, by answer alone; and, unless the defendant complies with these requirements as to method, he waives all objection.1 It has been expressly decided in

142 Ind. 555, 41 N. E. 599. Held in Mason v. St. Paul Fire Ins. Co. (1901), 82 Minn. 336, 85 N. W. 13, that a defect of parties plaintiff, when the question is raised by answer, does not entitle the defendant to a verdict on the merits, but only to a dismissal; but if, in such a case, a motion to dismiss is not made upon proof of the defect of parties plaintiff, the objection is waived. And in Atcheson, Topeka, etc. Ry. Co. v. Hucklebridge (1901), 62 Kan. 506, 64 Pac. 58, it was held that the Code provision requiring defects in petitions other than those appearing on face of same to be set up by answer, does not apply to a petition by a partner who conceals the fact of partnership and wrongfully brings suit in his own name for an injury to partnership property. In such case defendant, if ignorant of partnership until disclosed upon the trial, may then raise the question without amending answer. See dissenting opinions herein.

Ohio,

N. W. 281; Bell v. Mendenhall (1898), 71 Minn. 331, 71 N. W. 1086; Allen v. Cooley (1898), 53 S. C. 77, 30 S. E. 721; Howe v. Harper (1900), 127 N. C. 356, 37 S. E. 505; Medano Ditch Co. v. Adams (1902), 29 Colo. 317, 68 Pac. 431; Prichard's Executrix v. Peace (1895), 98 Ky. 99, 32 S. W. 296; Rittenhouse v. Clark (1901), 110 Ky. 149, 61 S. W. 33; Radant v. Werheim Mfg. Co. (1900), 106 Wis. 600, 82 N. W. 562; Osborn . Logus (1895), 28 Ore. 306, 42 Pac. 997; Ross v. Page (1902), 11 N. D. 458, 92 N. W. 822; Bates-Smith Inv. Co. v. Scott (1898), 56 Neb. 475, 76 N. W. 1063; Coe v. Anderson (1894), 92 Iowa, 515, 61 N. W. 177; Hellams v. Prior (1902), 64 S. C. 296, 43 S. E. 25; Wyman v. Herard (1899), 9 Okla. 35, 59 Pac. 1009.

A plea in abatement for defect of parties must show affirmatively the names of the parties omitted, that they are alive, and that they are within the jurisdiction of the court: Cone v. Cone (1901), 61 S. C. 512, 39 S. E. 748. A demurrer or plea on the ground of defect of parties should show in what the defect consists and should name the party not joined: Emerson v. Schwindt (1900), 108 Wis. 167, 84 N. W. 186; Johnson v. Gooch (1894), 114 N. C. 62, 19 S. E. 62; Boseker v. Chamberlain (1903), Ind., 66 N. E.

A demurrer to a petition, stating in general terms that "there are no proper parties," is too vague and general. It should point out who would be proper parties: Dawson v. Equitable Mortgage Co. (1899), 109 Ga. 389, 34 S. E. 668; Parker v. Cochran (1895), 97 Ga. 249, 22 S. E. 961.] Also Merritt v. Walsh, 32 N. Y. 685; Donnell v. Walsh, 33 N. Y. 43; s. c 6 Bosw. 621; Gock . Keneda, 29 Barb. 120; Umsted v. Buskirk, 17 Ohio St. 113; Dickinson v. Vanderpoel, 5 N. Y. Sup. Ct. 168. See also Trenor v. Cent. Pac. R. R., 50 Cal. 222; Maxwell v. Pratt, 24 Hun, 448 (an answer setting struction: Loomis v. Hollister (1902), 75

448.

The objection of defect of parties cannot be raised for the first time on appeal: Thompson v. Rush (1902), – Neb.

1

92 N. W. 1060; nor by an in

Conn. 275, 53 Atl. 579; Osborn v. Logus (1895), 28 Ore. 306, 42 P: c. 995; nor by oral demurrer at the trial: Shull v. Caughman (1898), 54 S. C. 203, 32 S. E. 301; nor is it ground for dismissing the complaint on the trial upon the merits: Radant v. Werheim Mfg. Co. (1900), 106 Wis. 600, 82 N. W. 562; nor can it be raised by motion for a new trial: Mather v. Dunn (1898), 11 S. D. 196, 76 N. W.

and this is plainly the correct rule, that a demurrer for want of sufficient facts does not raise the question of a defect- nonjoinder of plaintiffs or defendants.1

$ 125. *208. Meaning of Want of Legal Capacity to Sue. A demurrer or defence for this cause must relate exclusively to some legal disability of the plaintiff, — such as infancy, coverture, idiocy, and the like, and not to the absence of facts sufficient to constitute a cause of action.2 The facts constituting a cause of action may be sufficiently averred, and yet the plaintiff may not have a legal capacity to sue. The objection that the plaintiff has not legal capacity cannot, therefore, be raised and