murrer if apparent,62 but it will not be sustained if the nonjoined parties are merely proper and are not indispensable.63 A complaint is not demurrable merely because it sets out a contract variant in naine from the name of the corporation as pleaded.64 In chancery the demurrer should be laid only to that part of the bill which is demurrable and other parts should be met by plea or answer. Hence a member may demur to relief and answer to discovery.65 None but those things within the scope of the demurrer and its specifications will be reached. Thus it has been shown that a demurrer under the codes for want of legal capacity to sue will not test the complaint for want of facts to make a cause of action, and vice versa.66 Articles of incorporation attached or exhibited with the complaint but not a part of the cause pleaded do not expose it to demurrer for facts revealed thereby.67 Neither does a reference to the act in pleading existence vitiate the complaint by reason of judicial notice that organization is incomplete, and thus open it to demurrer.68 The general rule that a demurrer searches the whole record and reaches the first defect does not apply to a demurrer to a plea in abatement, because such a plea is not addressed to the complaint,69 62 For improper joinder of stockholders as plaintiffs. Havana City Ry. Co. v. Ceballos, 49 N. Y. App. Div. 263, 63 N. Y. Supp. 417. 63 In a creditors' statutory action to avoid bonds the nonjoinder of all bondholders as defendants is not demurrable where they are not necessary but only proper parties. Phoenix Nat. Bank v. A. B. Cleveland Co., 58 Hun (N. Y.) 606, 11 N. Y. Supp. 873. 64 On demurrer a variance in plaintiff's name from that in the note it sues on by action of assumpsit without making profert is not issuable, since the identity may appear from extrinsic facts or from the note when put in evidence. Medway Cotton Manufactory v. Adams, 10 Mass. 360. 65 Many v. Beekman Iron Co., 9 Paige (N. Y.) 188. If a member be joined and both relief and discovery prayed against him, whereas discovery only can be granted, demurrer to the whole bill by him is bad. He should answer to 66 See this section, cases dealing with allegations of corporate existence and place, supra. 67 Making a copy of articles "a part of the complaint filed therewith does not expose it to demurrer, the action being for recovery of an assessment for draining and the articles not being the instrument sued on. Excelsior Draining Co. v. Brown, 38 Ind. 384. 68 It is not necessary to plead such facts or steps in organization. Cheraw & C. R. Co. v. White, 14 S. C. 51; Cheraw & C. R. Co. v. Garland, 14 S. C. 63. 69 Indiana, B. & W. Ry. Co. v. Foster, 107 Ind. 430, 8 N. E. 264; Price v. Grand Rapids & I. R. Co., 18 Ind. 137. See also Stephen on Pleading (Tyler's Ed.), 161, where this is stated [§ 3068 and it certainly could not be carried back through a bad plea to a good paragraph or count,70 though a Kentucky case is authority for carrying a demurrer to the answer back to omission of the complaint to allege that plaintiff is a eorporation; 71 nor will formal defects in an answer raising among others the issue of corporate existence be reached by a demurrer generally to the reply.72 There are few cases on these points, and much would depend on whether the omitted particulars, such as those of corporate existence, were regarded as matters of substance or of form and whether essential or only requisite if seasonably questioned before answering. A general demurrer admits well-pleaded facts that the corporation exists 73 and is rightly named 74 and has the power alleged or implied,75 and the authority of officers and agents involved.76 A demurrer which amounts to a general appearance admits both the corporate existence and the court's jurisdiction over it.77 The admissions. by the demurrer do not reach those facts which the court judicially knows to be otherwise,78 and such admission does not supply evidence as the common-law rule and the reasons for it are given. 70 Demurrer to a plea in abatement will not be carried back to a paragraph of the complaint against which the plea is bad. Shick v. Citizens' Enterprise Co., 15 Ind. App. 329, 57 Am. St. Rep. 230, 44 N. E. 48. 71 Where the complaint fails to allege that plaintiff is a corporation, it can be reached by special demurrer or a demurrer to the answer would reach back to the complaint and raise the question. Pryse v. Three Forks Deposit Bank's Assignee, 20 Ky. L. Rep. 1057, 48 S. W. 415. 72 A general demurrer to a reply on the issue of corporate existence will not reach back to formal defects in that part of the answer. Stoddard v. Onondaga Annual Conference of Methodist Protestant Church, 12 Barb. (N. Y.) 573. See this stated as the general rule in Stephen on Pleading (Tyler's Ed.), 161. capacity to sue. Wiles v. Philippi Church, 63 Ind. 206. 74 Declaration in assumpsit on note that makers promised plaintiff corporation by a variant name, etc., is good pleading to explain the variance; bence demurrer will be taken as confessing it. Medway Cotton Manufactory v. Adams, 10 Mass. 360. 75 An averment of foreign incorporation duly authorized to" do the acts on which complaint is based is admitted by demurrer. Farmers' Loan & Trust Co. v. Fisher, 17 Wis. 114. 76 Admits authority of agent to do alleged act. Lyman v. White River Bridge Co., 2 Aik. (Vt.) 255, 16 Am. Dec. 705. 77 Holden v. Great Western Elevator Co., 69 Minn. 527, 65 Am. St. Rep. 585, 72 N. W. 805; Reynolds v. La Crosse & M. Packet Co., 10 Minn. 178. 78 Demurrer to an allegation setting out a public act of incorporation by a wrong title, does not admit that it is correctly entitled, as judicial notice informs the court that no such act exists. Union Bank v. Dewey, 3 N. Y. 73 A demurrer for insufficiency of pleaded facts to constitute a cause of action admits corporate existence and on trial, e. g., of the corporate existence.79 A demurrer to a replication admitted the fact therein pleaded that defendant was a corporation, and thereby supplied a lacking allegation of that fact necessary to make out federal jurisdiction.80 Demurrer to the jurisdiction will lie only when it could under no circumstances be had, and accordingly an untenable special demurrer was held to be a general demurrer and thereby a general appearance.81 § 3069. Objections in abatement and to the jurisdiction. When and how the objections to the jurisdiction or matters of abatement are to be urged is now to be considered. Whether a plea is in abatement or in bar is considered in the next section.82 What the answers and pleas must or should contain and the sufficiency and effect of the denials and allegations therein will be discussed in ensuing sections.83 It was a rule at common law that all pleas to the jurisdiction and in abatement must go in before pleading to the merits, and a plea to the merits waived them. The reason of the rule remains in the practice of treating all such pleas as preliminary to the main issues. If there is a general appearance in form 84 or by demurrer 85 or by answer, all objections to the jurisdiction over the person, that is to jurisdiction in personam over the corporation, are waived, which under the practice in the particular court might have been made at an earlier stage.86 Under the codes the plea in abatement is made in the answer which does not constitute an appearance cutting off the right.87 Super. Ct. 509. The soundness of this decision may well be questioned. While the judicial notice of all public acts would inform the court that no such public act exists, it might be an admission that some private act entitled as alleged was in existence. On the other hand if the court judicially knew the statute because it was public, the error in pleading the title would seem immaterial. 79 Admission of corporate existence is only for purpose of demurrer, not as proof. Jackson's Adm'x v. Bank of Marietta, 9 Leigh (Va.) 240. 80 Lafayette Ins. Co. v. French, 18 How. (U. S.) 404, 15 L. Ed. 451. 81 Demurrer for want of jurisdiction over the person of a foreign corporation, being untenable because demurrer only lies where jurisdiction could under no circumstances be had, falls within the rule (Pub. St. p. 629, § 37, and p. 228, § 26) that demurrer is an appearance and that a corporation may appear to the jurisdiction. Reynolds v. La Crosse & M. Packet Co., 10 Minn. 178. 82 § 3070, infra. 83 See $$ 3071-3086, infra. 84 Will not be allowed after appearance to an action of transitory nature brought where defendant's railroad line runs. South Florida R. Co. v. Weese, 32 Fla. 212, 13 So. 436. 85 Thompson v. Michigan Mut. Ben. Ass'n, 52 Mich. 522, 18 N. W. 247. 86 See also § 3019, supra. 87 A general appearance by putting in an answer which presents the jurisdictional question, it not appearing on the face of the complaint, does not [$ 3069 Objections to the writ itself cannot be made until after its return into court, but must be made before other pleas.88 On the other hand, objections to the jurisdiction of the cause because the court could in no way have jurisdiction,89 as where there was no legal mode of obtaining jurisdiction,90 or the venue was jurisdictional,91 may be taken at any time.92 Hence objection for want of jurisdiction over a foreign corporation because of the nature of the subject-matter cannot be waived by passing a demurrer or answer, but may be made by motion and at any stage of the case, or by the court of its own motion.93 The general question of their jurisdiction is open to the federal courts at all times and in any way, even of the court's own motion,9 94 but they cannot question the existence de jure or de facto of a corporate party if some special ground of jurisdiction exists, such as a patent case, because of which it is immaterial whether there be any diversity such as nonincorporation might destroy. In other words they on their own motion may question existence of a corporate party only as bearing on the jurisdiction.95 Joining with a demurrer in abatement others which recognize the jurisdiction waives the objection, 96 though this is not true where the practice provides for raising the jurisdictional question by demurrer, and other questions also, and does not admit of separate waive it. Heenan v. New York, W. S. & B. Ry. Co., 34 Hun (N. Y.) 602; 1 How. Pr. (N. S.) 53. 88 Plea in abatement for failure of writ to describe defendant as a corporation, though fully named, can only be made after the writ is brought into the record by oyer and before any other plea. Otherwise it is waived. Snyder v. Philadelphia Co., 54 W. Va. 149, 63 L. R. A. 896, 102 Am. St. Rep. 941, 1 Ann. Cas. 225, 46 S. E. 366. 89 Want of jurisdiction over the subject-matter can be made by answer or demurrer. Muslusky v. Lehigh Valley Coal Co., 96 N. Y. Misc. 68, 159 N. Y. Supp. 571. 90 The corporation can make objection at time of trial, there being no possible mode of service. Brauneck v. Knickerbocker Life Ins. Co., 1 Abb. N. Cas. (N. Y.) 393. 91 See § 2978, supra, also § 3119, fra. in As regards foreign torts, Civil Code, § 2334, fixing venue, may be waived and jurisdiction consented to; hence it must be seasonably questioned by plea or demurrer. Central of Georgia R. Co. v. A. C. Dowe & Co., 6 Ga. App. 858, 65 S. E. 1091. 92 May be taken even after examination of witnesses. Fairclough v. Southern Pac. Co., 171 N. Y. App. Div. 496, 157 N. Y. Supp. 862, rev'g 155 N. Y. Supp. 899. 93 Perry v. Erie Transfer Co., 28 Abb. N. Cas. (N. Y.) 430, 19 N. Y. Supp. 239, rev 'g 40 N. Y. St. Rep. 693, 16 N. Y. Supp. 153. Want of jurisdiction over the corporation cannot be waived or given by consent. Davidsburgh V. Knickerbocker Life Ins. Co., 90 N. Y. 526. 94 See 2965 et seq., § 2977, supra. 95 Kardo Co. v. Adams, 231 Fed. 950, at page 954. 96 Western Loan & Savings Co. v. Butte & B. Consol. Min. Co., 210 U. S. 368, 52 L. Ed. 1101. demurrers.97 A bare motion to dismiss for want of jurisdiction is improper practice, demurrer or answer under the codes being the regular mode of raising the question.98 By making an untenable motion to dismiss for want of jurisdiction over the case, defective jurisdiction over the person may be waived.99 Objection to the jurisdiction seasonably made in the proper way is not waived by pleading over after the objection is overruled.1 There is a substantial difference between a plea in abatement proper and a plea that the person served did not competently represent defendant, or that the service was not legally had, and in some states this is also preserved in form and procedure. Where common-law practice at all remains, some difficulty is presented whether a plea in abatement will lie where a corporation merely claims improper service. If the plea that the court has not any jurisdiction be found true, it would entail dismissal of the suit or action, or of the defendant, notwithstanding the court would have jurisdiction if it could get defendant into court; and such dismissal might stand as a bar. Either a bar or a dismissal would work injustice. In this situation the proper chancery practice, concludes the New Jersey court, on a defective service of the corporation is by motion under a conditional appearance assailing the service on the ground that it was not properly made, or if defendant was a foreign corporation on the ground that it was not subject to be served.3 And in that state it has been established by 97 Fry v. Denver & R. G. R. Co., 226 Fed. 893. 98 Delaware, L. & W. R. Co. v. New York, S. & W. R. Co., 12 N. Y. Misc. 230, 33 N. Y. Supp. 1081. * 99 Motion to dismiss on ground that court had "no jurisdiction of the case, it appearing that said defendant is a foreign insurance company and that no part of the alleged cause of action arose in this state" goes to the jurisdiction of subjectmatter and therefore waives jurisdiction of the person. Handy v. Insurance Co., 37 Ohio St. 366. See also to same effect, Cleveland, C., C. & I. Ry. Co. v. McLean, 1 Ohio Cir. Ct. 112, 10 Ohio Cir. Dec. 67. 1 Mt. Olive Coal Co. v. Hughes, 45 Ill. App. 566, pointing out the practice and showing that waiver takes place by plea to merits while plea in abatement is pending or before it is made. 2 A plea that the person served was not an officer or agent of the corporation is a plea to the jurisdiction in the nature of a plea in abatement. American Spirits Mfg. Co. v. Peoria Belt Ry. Co., 154 Ill. App. 330; Beck v. Pauli Lithographing Co. v. Monarch Brewing Co., 131 Ill. App. 645. 3 Ewald v. Ortynsky, 77 N. J. Eq. 76, 75 Atl. 577, citing Daniell's Chancery Pl. & Pr. 536 and note. At common law no such plea could have been made in an action, because the return of service was conclusive. In chancery the better practice was by motion addressed to irregularity of process, which was followed in federal courts in analogous cases. Early prac |