Sun Mutual Insurance v. Dwight — 1 Hilt. 50

Majority

p. 50

The Sun Mutual Insurance Company v. Henry Dwight, Jr.

Headnote

Where the necessary papers upon the appeal are not submitted to the court, the appeal will he dismissed. So held, where the papers did not show whether the .appeal was taken from a judgment upon a demurrer or from an order striking out •a demurror as frivolous.

■En an action by a corporation it is not necessary to specify by dato and titlo the .■acts amending the act incorporating them. It is sufficient to designate that act ■particularly, and to refer generally to the other acts amendatory thereof.

Demurrer to complaint. This was an action upon a promissory note, made by the defendant to the order of the plaintiffs, and delivered to them by the defendant. The complaint, after setting forth the making and delivery of the note, etc., averred that the plaintiffs were a corporation, incorporated under an act of the legislature of the state of New York, passed May 22d, 1841, and entitled, An act to incorporate The Sun Mutual Insurance Company,” together with the several acts amendatory thereof and the general laws of the said state. The defendant

p. 51

.demurred, upon tbe ground tbat tbe complaint did not state facts sufficient to constitute a cause of action.

The demurrer was overruled, whether upon argument of the demurrer or upon motion for judgment, on account of its frivolousness, did not appear bj tbe papers before tbe court. The defendant appealed.

G. N. Potter, for tbe appellant.

Henry P. Fessenden, for tbe respondent.

I am at a loss, from tbe papers submitted on this appeal, to say whether the same is from tbe decision on a motion to strike out tbe demurrer as frivolous, ;jpr from a decision upon tbe argument of tbe demurrer. Tbe appellant should, see that tbe papers necessary on tbe appeal should be submitted to tbe court. If be neglects to do so, be has no cause to complain if his appeal is dismissed.

Upon tbe merits, I think, tbe demurrer cannot be sustained. Tbe complaint alleges tbe making and delivery to tbe plaintiffs of tbe note in suit; tbat the same was not paid at maturity nor since tbat time; tbat tbe plaintiffs are a corporation under a statute 'which is designated particularly, and other amendatory acts.

These facts are all admitted by the demurrer, which alleges, for cause of demurrer, that tbe above does not constitute a cause of action.

Nothing more would be necessary, to maintain the plaintiffs’ case before a jury, than tbe proof of such facts. The omission to set out tbe amendatory acts is not material. A reference to tbe first act shows the plaintiffs to be a corporation, and the residue may be considered as surplusage.

I rather think this is not a ground of demurrer, by the. code. There is no defect in stating a sufficient cause of action, and for any tiling beyond tbat, instead of demurring, the defendant should move to have the complaint made more specific. If no act oí incorporation had been stated, the result might be otherwise.

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I have expressed an .opinion upon tbe merits against tbe appeal, but, for tbe reason first stated, tbe appeal must be dismissed with costs.

Appeal dismissed.