[ G.R. No. 6791. March 27, 1913 ] 24 Phil. 504
[ G.R. No. 6791. March 27, 1913 ]
LIZARRAGA HERMANOS, PLAINTIFFS AND APPELLEES, VS. F.M. YAP TICO ET AL., DEFENDANTS AND APPELLANTS. D E C I S I O N
MORELAND, J.:
The action is one to determine the ownership of certain real property and to secure a permanent injunction restraining the defendants from levying upon and selling or other wise invading the same. There is only one appellant, F.M. Yap Tico. Three questions are raised: one, the sufficiency of the complaint on demurrer; another, the sufficiency of the complaint to sustain the injunction; the third, upon the merits. The ownership and right to possession of the plaintiffs to the property in question is conceded. We regard this case as turning upon the question whether the defendant sheriff had levied upon or announced for sale the corpus of the property in litigation herein or whether he had seized upon and was selling merely the right to repurchase which at the time belonged to the judgment debtor, Secundino Mendezona, one of the defendants herein. If he had levied upon and was selling the latter only, an injunction would not lie. If the former, an injunction was proper. The argument of counsel for the appellants is based upon the theory that the sheriff had levied upon and was about to sell only that interest in the premises belonging to Mendezona known as the right of repurchase. In such case the action would not lie and the injunction was, of course, improper. In resolving this question it must be borne in mind that, although there was a trial with the introduction of evidence by both parties, such evidence has not been brought to this court. In deciding this appeal upon the merits we look only to the pleadings and proceedings in the action and to the facts stated in the opinion of the trial court. It is true that the complaint seems to allege in a general way that the sheriff proposed selling the “right, interest, and share” which the judgment debtors had in the premises in litigation; but it does not state that that was all that the sheriff had actually seized and levied upon. On the contrary, it affirmatively alleges that the defendants, were actually invading the property, rights and interests of the plaintiffs. Moreover, the prayer of the complaint indicates that the corpus of the property had actually been seized by the sheriff under the execution, and was being advertised for sale. The prayer is to the effect that the court “issue a preliminary injunction against all of the defendants and each of them, their agents, servants, lawyers, and other persons, requiring them to abstain from selling, taking possession of, or seizing any of the property described in the complaint until after final judgment in this case.” While the prayer is not strictly an allegation of the complaint, it may, nevertheless, be used to make clear an allegation which might, rigidly speaking, be susceptible of different interpretations. As we have said, the defendants failed to bring here the levy and return of the sheriff, which are primarily the best evidence of the nature and extent of the levy, and failed also to present on appeal the notice of sale published by the sheriff. We have, however, in addition to the finding of the court below, the answer of the sheriff in this case. In the absence of the evidence referred to, and, in fact, any other evidence in the case, we must take this answer, together with the finding of the court on the subject, as conclusive of the question as to what property was the subject of the levy and the proposed sale. That answer, so far as material to this question, reads as follows:
“The undersigned appears and respectfully represents: “1. That he is sheriff of the Province of Nueva Ecija and one of the defendants in the above-entitled action. “2. That in attempting to sell, as sheriff, the property described in the second paragraph of the complaint, he was doing so by virtue of the executions issued on the 24th of November, 1906, by the Honorable Court of First Instance of the city of Manila, or, in other words, he was engaged in the performance of his duties as sheriff.”
Paragraph 2 of the complaint describes the property as follows:
“A warehouse of strong materials located on land situated in the pueblo of Cabanatuan of the Province of Nueva Ecija and leased to Dona Ruperta Garcia, which warehouse measures 26 feet in length and 65 feet in width, with a wing 52 feet in length and 39 feet in width; a steam engine of 35 nominal English horsepower; 6 mills; 4 sifters; 7 elevators; 3 ventilating cones and complete accessories for threshing paddy and bleaching and polishing rice with a capacity of 1,500 sacks daily, installed in the said warehouse, as well as a locomotive of 15 American horsepower; a threshing machine with a capacity of 1,000 cavanes of paddy daily; and 75 carts with iron axles and wheels.”
This property, as is readily seen, is not the interest known as the right of repurchase, but is the property, and the whole thereof, which was purchased by the plaintiffs in this action from Mendezona and his partners and as to which said Mendezona reserved only the right of repurchase. This admission of the sheriff that he had levied upon the corpus of the property and was attempting to sell it is of importance in this action for the reason that he is the person who knew best the nature of the levy and the property that he had actually seized. We regard this answer as substantially taking the place of the sheriffs levy and return and the published notice of sale, as it shows the property levied upon and exposed for sale as fully as the levy and return would do. It is conceded in this case that the plaintiffs had a right to the possession and control of this property and that the sheriff had no right to interfere therewith. It is also conceded that the sheriff had no right to levy upon anything concerning said property except Mendezona’s right to repurchase the same, leaving the plaintiffs in the possession and control of the corpus and permitting them to continue the business in which they were then engaged thereon. Such being the case, a seizure of and levy upon said property itself was an unwarranted invasion of the rights and interests of the plaintiffs; and an attempt to sell the property under said levy could be enjoined in the proper action. It may be true that the terms of the injunction were somewhat broader than the prayer of the complaint. If so, a motion should have been made to vacate the injunction, or such part of it as wa in excess of the remedy demanded. In such case the execution creditor would have been at liberty to levy upon the right of repurchase and proceed with its sale. The only objection made, however, was directed against the sufficiency of the complaint as a basis for any injunction whatever. Such objection, in the form of a demurrer, was not made, however, until the 29th of April, 1907, when the demurrer was filed; while the answer of the sheriff above referred to, showing the nature of the levy, was filed on the 12th of March, 1907. While the complaint, from the viewpoint of the draftsman is not well drawn, and while criticism of it in incidental particulars is easy, still the broad question is, Does it fairly apprise the defendants of the plaintiff’s real contentions and claims against them? Would they be misled to their surprise and injury if they placed faith in its allegations? (Code of Civ. Proc, sec. 06.) Paragraph 7 of the complaint, so much relied upon by those attacking the validity of the judgment below, does not allege what property was actually seized, or in what manner the execution had been levied, or what methods were being used to carry the levy and sale to completion. It simply states that the sheriff was offering for sale certain interests of the defendants. This would, of course, indicate that those interests were the only property levied upon. But it does not indicate what property had actually been seized, or taken possession of, or invaded, in order to make such levy and sale. It may well be, and it seems to be, the intention and purpose of paragraph 8 of the complaint to allege that, in order to sell the right to repurchase plaintiff’s property, the sheriff had gone upon and taken possession of the property itself, or, at least, was attempting to do so. It would not be at all surprising if the sheriff”, attempting to levy upon such an indefinite thing as a right to repurchase, should deem it necessary for a valid levy, to take possession of or otherwise invade the property to which that right pertained. Construing paragraphs 7 and 8 together, and considering them in conjunction with the prayer for relief, one is forced to the conclusion that objection is made not only to the notice of sale, but also to what had been done to carry the proposed sale to completion. It is reasonably clear that the plaintiffs were complaining to defendants that they were actually invading the plaintiff’s property. It matters not whether that invasion was for the purpose of selling the corpus of the property, or whether it had as its object merely the sale of the right to repurchase. It was an invasion in either event. Seizing one man’s property for the purpose of selling that of another is, in principle, as illegal and indefensible as it is to seize and sell one man’s property to pay the debt of another. Selling property is not the only way of committing trespass upon it. For these reasons we believe that the demurrer was properly overruled. But, granting all that may be said about the deficiency of the complaint, still it is not more deficient than the demurrer urged against it. Strictly speaking, the demurrer to the complaint in this case is valueless as a pleading, in that it fails in one of the essential requirements of a demurrer. Section 91 of the Code of Civil Procedure provides:
“The demurrer must distinctly specify the grounds upon which any of the objections to the complaint, or to any the causes of action therein stated, are taken.”
When a demurrer is made to a complaint, whether upon one ground or another, it should set out distinctly the grounds upon which the objection is based. It cannot be couched simply in the language of the code. It must set forth distinctly the grounds upon which that language is founded. The reason for this is plain. It is not fair to the plaintiff to interpose to a complaint the simple objection that it does not state facts sufficient to constitute a cause of action. Neither is it fair to the court. Neither the plaintiff nor the court should be left to make, possibly, a long and tiresome examination and investigation and then, perhaps, finally be compelled to guess. The grounds of the objection should be pointed out so that all may see. A demurrer was not invented to make useless work for a court, or to deceive or delude a plaintiff. Its purpose was to clarify all ambiguities; to make certain all indefinite assertions; to bring the plaintiff to a clear and clean expression of the precise grievance which he has against the defendant; to aid in arriving at a real issue between the parties; to promote understanding and prevent surprise. To that end, a demurrer should specify, for the benefit of the plaintiff and the court as well, the very weakness which the demurrant believes he sees tn the complaint. It should be so presented and handled as to bring to a quick determination the question whether the plaintiff has, at bottom, a legal claim against the defendant. To attain this object, the demurrer should be clear, specific, definite, and certain as to the precise weakness of the complaint. Being an instrument to cure imperfections, it should not itself be imperfect. To the, complaint before us a demurrer was interposed, stating merely that the complaint did not allege facts sufficient to constitute a cause of action. No particular ground was specified. No specific failure was asserted or named. No precise weakness was pointed out. The order overruling the demurrer does not indicate that the court was informed as to the specific grounds upon which it was based. Certainly, so far as the record goes, the plaintiffs never knew until after the demurrer was decided precisely what the defendant was driving at when he presented it. Under such conditions, we do not feel that we should use our discretion to indulge presumptions in favor of the demurrant in determining whether or not the allegations of the complaint are sufficient. We do not feel like going out of the beaten path, even if we could, to search for defects in the complaint when neither the plaintiff nor the court was precisely informed of the alleged defects until it was too late to be of use to either. We do not feel like favoring a demurrer which is as full of defects as the pleading against which it is launched. The order of the court overruling the demurrer should be sustained if there is any legal ground upon which it can be, although such ground was not presented by the court below as one of the reasons for its decision. The fact that the demurrer was worthless as a pleading is one of the strongest reasons for overruling it. It has been urged that our decision, requiring that in all demurrers the specific grounds of the particular objection should be set out distinctly, is against the weight of authority. We do not think so. But if it were, we should still be forced, in conscience, to stand upon the proposition as we have stated it, as it seems to us to be fundamentally right and to be fully supported by reason and logic. In an examination of the authorities which have been urged against the proposition here taken, we have found only one State which has been shown, to our satisfaction, to have taken a position opposed to ours. The courts of the State of New York have been cited against us and one of the latest decisions presented in support thereof. An actual reading of the New York Code of Civil Procedure demonstrates that the case is not well cited. The New York Code of Civil Procedure provides expressly that a demurrer, based upon the ground that the complaint does not state facts sufficient to constitute a cause of action, may be presented in those words, which are the words of the statute; and no specific grounds of such objection need be given. Instead, then, of requiring the specific grounds upon which the objection is based to be distinctly stated, as does our statute, the New York statute provides expressly that they need not be given. Therefore, the contention that the decisions of New York are opposed to our decision seems to be unfounded. As a necessary result, the claim that New York is not in accord with this decision is also unfounded. Most of the decisions presented from other States, such as those of Indiana, North Dakota, and Missouri, are based, so far as can be ascertained with the material at hand, upon statutes materially different from our own, and for that reason are not in point. As highly as we respect the learning and ability of the supreme courts of the States holding contrary views, if there is more than one, we cannot accept their judgment as to the construction which should be given to section 91 of our Code of Civil Procedure. To our mind, that section clearly requires two things to be done by the demurrant: (1) He shall make an objection, putting such objection in the words of the statute, or substantially in those words; and (2) he shall specify the grounds of that objection. The construction given by that section by those who oppose that here set forth requires only one of those things to be done,namely, the making of the objection in the words of the statute. This construction leaves the other part of the statute, namely, that requiring that the grounds of the objection shall also be specified, without force and effect. Thus, by what appears to be construction, a very important, in fact the most important, part of the law has been abrogated. As for us, we do not construe or interpret this law. It does not need it. We apply it. By applying the law, we conserve both provisions for the benefit of litigants. The first and fundamental duty of courts, in our judgment, is to apply the law. Construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them. They are the very last functions which a court should exercise. The majority of the laws need no interpretation or construction. They require only application, and if there were more application and less construction, there would be more stability in the law, and more people would know what the law is. Some authorities still adhere to the technicalities of the old pleading and procedure in spite of the liberal tendency of procedural laws. They still cling to the old difference between general and special demurrers, holding with the old authorities that in special demurrers the precise defect must be pointed out, while in a general demurrer no defect whatever need be specified. This is distinctly against the tendency of modern thought and modern legislation. The more general a demurrer is, the worse it is. The assertion that a special demurrer, which under the old practice was used only against form, should specify the particular defect, while the general demurrer, which under the old practice was used only as to substance, should specify none, does not appeal to us. The claim that, in an objection to the form, one must aim exactly at the defect; whereas, in an objection to the substance, he may aim at the sky, is not convincing. As we view it, it is not logical to maintain that, as to form, which, as a rule, is of slight importance, the party must be fully advised and informed of the alleged defect, and to that end the demurrant must point it out specially; while as to the substance, which, at all times, is the important thing of all, the party need not be advised or informed as to the precise defect alleged, and that, therefore, the demurrant need not point it out but is fully justified in keeping, so far as he can, both the court and the party in complete ignorance thereof. It is claimed, following the old theory, that the general demurrer searches the whole record; but if it searches, it does not discover or disclose. It may search, but if it finds anything, it puts it carefully away in a dark place, cautiously concealing it from the eyes of the court and the knowledge of the adversary. The reason for this is that, if the court or the party knew the precise defect that had been “searched’ there would be an immediate amendment. If the party against whom a demurrer is interposed can be kept from discovering the real defect in his pleading until he is deeply in the meshes of demurrant’s net, then the case many times is substantially won. He cannot escape except by loss of so much time and at so great expense that, many times, it is not worth while to recommence or continue his action. It has been the policy of modern legislation to do away with these objectionable features, as well as others, and to that end the general demurrer has been, in effect, abolished in a number of States. Our own statute requires that “the demurrer must distinctly specify the grounds upon which any of the objections to the complaint, or to any of the causes of action therein stated, are taken. A pleading is not an instrument of deception. It is not something to get parties into trouble. It is not to be used to dig pitfalls or to lay traps or snares. It is not to be used to deceive but to inform; not to befog but to clarify; not to cause trouble but to obviate it; not to make expense but” to save it. A demurrer, for example, should not leave the court and the party against whose pleading it is aimed as ignorant of the defect in the offending pleading as before the demurrer is filed. Many times the objection that the complaint does not state facts sufficient to constitute a cause of action means very little. There are occasions, of course, when it is sufficient. But it is certain that no injury can ever result from naming the precise reason why the complaint does not state facts sufficient to constitute a cause of action; and, in the great majority of cases, great good will come of it Take this very case. Much of the real difficulty and uncertainty would have been avoided if the demurrer had pointed out the precise defect which it was claimed was found in the complaint. If the demurrer had specified arid stated that the complaint was defective, if it were really so defective, in that it alleged that the defendant had levied simply upon the interest of Mendezona in the premises known as the right to repurchase, something which he had a right to do and upon which no cause of action could be predicated, then the plaintiff would have been given a fair opportunity to meet the objection, either by amending his complaint and alleging a levy by the defendant upon the corpus of the property, or by standing upon the complaint and submitting to the court the question of law whether the defendant had a right to levy upon the right of repurchase. If the plaintiff had amended by alleging a levy upon the corpus, then the demurrer and all the questions relating thereto, now vexing the parties, would have been out of the case. If the plaintiff really intended to allege just what the demurrant now claims that he did allege, then the question of law above referred to would have been clearly presented and the case entirely resolved by the decision of that question. Indeed, it is more than probable that the plaintiff, if his complaint was really defective, would have withdrawn it after full consideration of the objection urged against it. It is not to be taken, from what we have said, that we will, of our own motion, raise the question of the sufficiency of a demurrer. We treat it as we do every other pleading. If the parties do not make timely objection to the defect, it win be deemed to have been waived. We take cognizance of the defect only when it has been duly and, properly raised below or when, as in this case, it is necessary to sustain a judgment of the inferior court. It must be remembered that, although, according to the record, there was a formal trial, with the introduction of testimony by both parties, the evidence has not been brought up on this appeal and we are, therefore, limited to the facts stated in the opinion of the trial court, together with the pleadings and proceedings in the action, in determining whether the judgment should be affirmed or reversed. The trial court, in its decision, finds as a fact that, “by virtue of two executions issued out of the Court of First Instance of Manila against the property of Secundino Mendezona, the sheriff of Nueva Ecija announced for public sale the property described in paragraph 2 of the complaint.” The property there described is concededly the property of the plaintiff. This finding is, of course, fatal to appellant’s contention that only the right to repurchase was levied upon. We must assume this finding to be based upon the evidence, as none of it is here from which we may determine otherwise. Having these things in mind, we consider the place which a demurrer, as a pleading, occupies in our practice. In this jurisdiction, the results flowing from the interposition of a demurrer, as a pleading, lack some of the features which pertain to such interposition in other jurisdictions. It has been uniformly held by this court that an order overruling a demurrer is not separately appealable, for the reason that it is interlocutory in its nature and falls within the prohibition of section 123 of the Code of Civil Procedure. (Segovia vs. Prov. Board of Albay, 13 Phil. Rep., 331; Averia vs. Reboldera, 10 Phil. Rep., 316; Serrano vs. Serrano, 9 Phil. Rep., 142.) There are two cases only in which proceedings based upon demurrers are appealable, and then only after final judgments have been entered, terminating definitely the action in that court. One case is where a demurrer to a complaint is sustained, the plaintiff refuses to amend and final judgment dismissing the complaint is entered. This is, however, in one sense, an appeal from a final judgment and not from an order. The other is where a demurrer is overruled, the defendant declines to answer and a judgment in favor of the plaintiff is entered upon the evidence thereupon offered to establish the allegations of the complaint. Even this case may partake much of the nature of an appeal from a judgment on the merits. In every other case, except, of course, where a demurrer is made to an answer, to a cross complaint, or to a counterclaim, in which substantially the same proceedings are had as are described above relative to a demurrer to the original complaint, the order overruling the demurrer and the exception taken thereto are brought to this court, not separately, but along with and as a part of the appeal from the final judgment after trial. In such appeal, if no objection has been made to the introduction of plaintiff’s evidence, the case is here considered upon the merits, and, even though it clearly appears that the complaint was and is still fatally defective, the demurrer thereto is of no consequence in the decision of the appeal, provided the evidence presented by the plaintiff, received without objection, has cured the defect and established a cause of action. This court, under such circumstances, has never reversed a case based upon the fact that the demurrer was, in the first instance, well founded. On the contrary, the appeal has always been, and is now, decided upon the merits as presented by the evidence, and, if the evidence establishes a cause of action, the judgment is affirmed, no matter how defective the complaint may have been. The reason for this practice is not far away: To prevent the multiplication of appeals, to secure the speedy termination of litigation, and to save expense to litigants. It may be urged that, where the complaint fails to state a cause of action against a defendant, an appeal from an order overruling the demurrer should be permitted in order that he may not be forced to undergo the expense, trouble, and worry of a trial when nothing has been alleged against him. This contention, however, overlooks two very important considerations, aside from the insurmountable one that the Code of Civil Procedure prohibits it. One of them is, “Who is to determine whether 6r not the complaint does state a cause of action?” The answer to that question presents the other consideration, namely, that the decision of the court upon the demurrer holds that the complaint does state a cause of action. Now, the strong probabilities are that the decision is right. The chances are strongly against the defendant in his appeal from that decision. Why, then, should the plaintiff be put to the expense of an extra appeal when he has the judgment of a court in his favor, and when, for that reason, the probabilities are in favor of the proposition that the defendant is wrong in his pleading? To the contention that the defendant ought not to be pressed to trial if he is right is interposed the reply that the plaintiff ought not to be pressed to an appeal if he is right. The question is, “Who is right?” The only answer to that question is, “The plaintiff " It is always the one against whom the judgment of the court runs who is the appellant, and it is always he against whom all the presumptions are indulged. He cannot be permitted, therefore, to play his one chance of reversal against plaintiff’s nine chances of affirmance, and thereby cause the plaintiff the expense, trouble, and worry of an appeal. It proves nothing to say that the defendant may be right in interposing his demurrer. The plaintiff may be right also. Having already a judgment in his favor, he has more chances of being right than the defendant. Moreover, if the demurrer alone cannot be made the basis of an appeal, why should it be made the sole reason for a reversal in an appeal taken from a judgment on the merits? It may be asked what, then, is the protection which a demurrer affords a pleader? There are several. In the first place, if a demurrer is well founded, an amendment, generally speaking, immediately results or the action is withdrawn or is dismissed, and the demurrer has accomplished a real purpose. In the second place, if the demurrer is overruled, the pleader, if he has sufficient faith, may still stand upon it, with or without answering, and, upon the proof of plaintiff’s cause of action if there is no answer, or upon the trial if there is an answer, object to the introduction of any testimony which tends to surprise him in that it is not within the scope of the allegations of the complaint. Whatever testimony offered is, in reality, subject to objection must be rejected. This will prevent surprise and protect the demurrant from the establishment of a cause of action of which he was not apprised by the allegations of the complaint. Moreover, when the case has reached this point the trial court is given an opportunity to use its sound discretion relative to the allowance of amendments of the defective pleading, of giving time to the other party to procure witnesses to meet the purpose of the amendments, and of doing all those things necessary to dispose of the case according to the right and prevent an error or mistake from causing a miscarriage of justice. It is apparent in this case that the complaint, if defective, was cured by the evidence introduced on the trial, as shown by the finding of the court, presumably based on the evidence, that the sheriff had levied upon the corpus of the property which concededly belonged to the plaintiff. The appeal must, therefore, be decided upon the merits. We are of the opinion that a sufficient case has not been made for reversal. Much objection has been made to that branch of our decision which provides that, under the Code of Civil Procedure, the introduction of evidence upon the trial, without objection on the part of the defendant, which establishes a cause of action against the defendant, will prevent him from thereafter raising the question that the complaint does not state facts sufficient to constitute a cause of action, as well as from taking advantage of an equivalent objection made before the trial. Cases are cited to the effect that “such a defect is not cured by verdict and judgment, even in the absence of any objection by demurrer or answer in the lower court, and objection made on account thereof may be made at any time;” and that “pleadings which wholly and completely fail to state any cause of action or defense, so that the admitted allegations cannot be assumed to have been proved, is not cured by verdict. It must be observed, however, that we are not asserting that a cure of the complaint is brought about by a verdict or a judgment. Our contention is that the cure is brought about by defendant’s own act. An issue may be joined as well at the trial as before. The reason why issues are required by law to be joined before trial is to give all the parties due notice of the claims made against them, thereby offering full and fair opportunity to produce their witnesses and meet the charges against them. But, where the issue, by some defect in the complaint or answer, has not really been joined before the trial, the parties may, by mutual consent, join issue at the trial. Issues may be raised between the parties in other ways than by pleadings. They may be raised on the trial by the evidence of the parties. However defective the complaint may be, if the parties go to trial, and, without objection from the defendant, the plaintiff proves facts sufficient to constitute the particular cause of action which it was intended his complaint should allege and the defendant voluntarily produces his witnesses to meet the cause of action thus proved, there is then and there joined an issue as fully and effectively as if it had been joined long before by the most perfect pleadings. As we have already said, the purpose of pleadings is to notify the parties of the claims which each has against the other and what each expects to prove. This is in order that each may have a fair opportunity to rebut the evidence of the other by the production of witnesses of his own. If each can be informed of the claims and demands of the other and can have a fair opportunity to produce his evidence in relation thereto, then the object of pleadings has been subserved. When, therefore, upon the trial the plaintiff, by his own proof, tenders the issue which the complaint was intended to tender, and the defendant accepts it and presents his evidence in relation thereto, is it not unreasonable to say that, thereafter, the defendant may, nevertheless, successfully move to dismiss the whole matter for the reason that the complaint did not state facts sufficient to constitute a cause of action? If necessary, may not the complaint be amended to meet the situation? (Code Civ. Proc, §§ 107, 109, 110.) It has also been urged that the sufficiency of the demurrer under the law was not raised at any time by anyone. It is asserted that the plaintiffs always accepted the demurrer as sufficient, and that this court, upon its own motion, has taken up the question of its sufficiency without either of the parties having been heard upon it. While this objection has been fully answered before, we may here add that we do not regard this objection as sound either in fact or in law. The judgment of the court below is entitled to be upheld upon any legal ground, and it is of no consequence whether the court assigned that ground as a basis for its judgment or not. It could very well have dismissed the demurrer upon the sole ground that it was insufficient in law and that the court would not be moved to exercise its power by a pleading which itself did not comply with the law. All this court has done in this connection, therefore, if anything, is to add one more ground to the support of the decision of the lower court. We are of the opinion that the judgment of the court below overruling the demurrer was, under all the conditions, proper, even though the complaint were as defective as is now contended. (See 31 Cyc, pp. 317,813, and cases cited.) The judgment is accordingly affirmed, without special finding as to costs. Arellano, C. J., Torres, Mapa, and Johnson, JJ., concur.