(3 Wyo. 140) JOHNSON v. HOME INS. Co. Filed April 21, 1885. PLEADING-BASIS OF ACTION-PETITION-EXHIBIT. Under the statutes of Wyoming the petition, and the petition alone, must set forth the facts upon which the action is based; no authority is given under the statutes for annexing an exhibit as part of the petition. Corthell & Arnold, for plaintiff in error. McIntyre & Symonds, for defendant in error. BLAIR, J. The sole question presented for the decision of the court in this case is, did the court below err in sustaining the amended demurrer filed by the defendant in error to the plaintiff's petition? The alleged causes of demurrer are as follows: First. That the court has no jurisdiction of the person of the defendant or the subject of this action, for the reason that the nature of the allegations constituting the plaintiff's cause of action, as set forth in said petition, are such that they are properly cognizable only in a court of equity. Second. That there is a defect of parties plaintiff in this: that it appears upon the face of said petition that said action is brought by the wrong plaintiff, and that John T. Purcell and W. A. Williams are the proper parties plaintiff, and are necessary parties to said suit. Third. That the petition does not state facts sufficient to constitute a cause of action. Assuming that the pleader, when he made his assignment of alleged errors in the order given above, had in mind and fully recognized the truth of the old saying, that the best of the wine should always be reserved for the last of the feast, I will consider the last assignment first; namely, that the petition does not state facts sufficient to constitute a cause of action. Whether the old rule, that a demurrer only admits what is well pleaded, or whether, as decided in the case of Stewart v. Balderston, 10 Kan. 131, that under the Code practice everything stated should be taken as true, whether well pleaded or not, I deem it unnecessary in this case to discuss. Let it suffice for me to say that the defendant, by his demurrer, admits the truth of the allegations in the plaintiff's petition-at least, in so far as is necessary to determine the question raised, if no further, but challenges the right of the plaintiff to recover upon the facts stated. By a careful examination of the plaintiff's petition I am fully satisfied that the court below committed no error in sustaining the defendant's demurrer. The first defect in the plaintiff's petition is that it wholly fails to state the kind or character of the property insured, or where located,-whether on American soil or on the ever-burning sands of the desert of Sahara. The pleader contents himself by merely averring "that on the ninth day of August, A. D. 1883, at the town of Laramie City, (now city of Laramie,) in the county and territory aforesaid, the said defendant, upon written application first duly made, in consideration of a certain premium, to-wit, the sum of $28, to the said defendant then paid, did, by a certain policy of insurance of that date, duly executed, insure one W. A. Williams against loss or dam age by fire to the amount of $4,000; (a true and correct copy of which said policy of insurance is hereunto attached, marked Exhibit A, and is hereby made a part hereof.)" It will be observed, all that is alleged in this allegation is that on the day named, in the county of Albany, that the defendant, in consideration of the sum of $28, did insure Williams, generally, against loss or damage by fire to the amount of $4,000. Nor does it appear in any other part of the petition what kind of property was insured, but leaves the defendant and the court free to determine for themselves whether it was real, personal, or mixed, and where located. The only other remote allusion in the petition to the property insured is as follows: "And the said plaintiff further avers that afterwards, on the eighth day of of September, A. D. 1883, the property insured became and was consumed and wholly destroyed by fire." The able counsel for the plaintiff in error contended, in his argument before this court, that inasmuch as the policy of insurance. discloses the character of the property insured, its location, and the county and territory it is in, that the defect complained of, if it be a defect, is cured; particularly in view of the fact that the policy of insurance is made by an express averment a part of the petition. This contention of counsel of the plaintiff in error brings to the front the question whether, under our Code, the pleader can make an exhibit, even if it be the foundation of the action, a part of the petition. Section 114, on page 47, of the Compiled Laws of this territory reads as follows: "If the action, counter-claim, or set-off be founded on account, or a note, bill, or other written instrument, as evidence of indebtedness, a copy thereof must be attached to and filed with the pleadings." It would seem, therefore, from the wording of this section, that the pleader has not the authority of the statute, nor can he make an exhibit a part of the petition; and if he seeks to do so by averring that it is a part thereof, it can have only the force and effect it would have if attached to and filed with the pleadings; namely, as evidence of indebtedness, nothing more, nothing less. It has been repeatedly held that the copy attached and filed with the pleadings forms no part of the pleading, and that the exhibit will not be looked to on demurrer to the pleading to aid its sufficiency. Larimore v. Wells, 29 Ohio St. 13; Watkins v. Brunt, 53 Ind. 208; Cairo & Fulton R. Co. v. Parks, 32 Ark. 131; Bowling v. McFarland, 38 Mo. 465. To grant the correctness of the contention of the counsel for the plaintiff in error would be to say that the omission of all, or of any one, of the necessary and material averments required in a petition to constitute a cause of action, can be supplied by reference to an exhibit, when it is averred that the exhibit is made a part of the pleadings. Surely this cannot be done. The petition, and the petition alone, must state the necessary and material facts constituting a cause of action. If it does not, it must be held bad on demurrer. The supreme court of Arkansas has held that a reviewing court will look at an exhibit so as to sustain the ruling of the court below on demurrer, when the exhibit is made a part of the record, (Buckner v. Davis, 29 Ark. 444; also, Holman v. Patterson's Heirs, Id. 357, 362;) but I know of no state, save one, in which it has been held that the court will look to an exhibit to supply the omission of a material allegation in the petition, even though the exhibit can be and is made a part of the petition. Again, while the petition alleges that it was on the ninth day of August, A. D. 1883, that the policy of insurance was executed and delivered by the defendant to Williams, it wholly fails to state for what period of time the defendant insured Williams against loss and damage by fire,—whether for one day only, or during the natural life of said Williams, or the existence of the company, or both. This omission I hold is fatal, and cannot be cured by fishing among the exhibits to ascertain how the matter is. Still again, the petition alleges that the property insured was destroyed by fire on the eighth day of September, A.D. 1883; but whether the policy of insurance was still alive and in force on that day, or whether its spirit had long before that eventful day taken its flight, the petition is as silent as the grave. An allegation in the petition. that the policy of insurance was in full force and effect, and had not expired or been canceled at the time the property was consumed by fire, is an indispensable averment; for without it the plaintiff's claim of right to recover would be at best the merest delusion, even if no demurrer was interposed. There were a multitude of other points argued and assumed by counsel, raised by the defendant's demurrer, and which the court was asked to decide. I do not deem it necessary or prudent to do so: not necessary, for the reasons I have given above, it being too evident that the judgment of the court below must be affirmed; not prudent, lest a like atmospheric phenomenon should be again created, as one of the counsel who argued this case for the plaintiff in error declared existed when he exclaimed "that the very atmosphere was filled with interrogation points." The judgment of the court below, sustaining defendant's demurrer, affirmed. (All the judges concurring.) (66 Cal. 645) SUPREME COURT OF CALIFORNIA. CLARK V. SMITH and others. (No. 7,565.) UNDERTAKING ON APPEAL IN EJECTMENT STATUTE OF LIMITATIONS. A right of action on an undertaking on appeal, in ejectment, given to secure the value of the use and occupation of the property in suit, accrues on the affirmance of the judgment of the lower court; and an action thereon to recover for such use and occupation, prior to the affirmance of the judgment, must be brought within four years thereafter or it will be barred. In bank. Appeal from the superior court of the city and county of San Francisco. The former opinion of the court in bank is reported in 4 PAC. REP. 689. Flournoy & Mhoon, for appellants. B. S. Brooks, for respondent. MCKEE, J. The cause of action in this case arose out of an undertaking on appeal, which was given by the defendants in the action, to stay execution of a judgment for possession of a tract of land, damages, and costs, recovered on the nineteenth of April, 1869, by John W. Littlefield against John Nichol and Thomas Weise. By the terms of the undertaking the obligors “acknowledged themselves jointly and severally bound in the sum of $3,000 (being the amount for that purpose fixed by the judge of the court) that if the said judgment appealed from be affirmed, the said appellants would pay the value of the use and occupation of the property from the time of the appeal until delivery of possession thereof, not exceeding said sum of $3,000," etc. The judgment appealed from was affirmed on the thirtieth of January, 1872, and on that day the remittitur from the appellate court was filed in the lower court; but the appellants made default in payment of the value of the use and occupation of the land, and the plaintiff, as assignee of the judgment and undertaking on appeal, commenced the action in hand on the seventh of September, 1876, upon the undertaking, to recover damages for the breach of their undertaking. The allegations in the plaintiff's complaint as to the statement of his cause of action are as follows: "That he has been entitled to the use and occupation of said land, and the rents, issues, and profits thereof, which have been during the pendency of said appeal, and long before and after, withheld from him; * * that * * * the value of the use and occupation of the property, from the time of the appeal until the filing of the remittitur, was more than $5,000, and that he has sustained more than $5,000 damages by reason of said appeal and stay of execution." -Therefore he asked judgment for the sum of $3,000-the amount specified in the undertaking. To this complaint the defendants demurred, upon the ground that more than four years had run, upon the cause of action stated therein, before the commencement of the action, and the right of action was barred. The demurrer was overruled, and this is the principal assignment of error. The question, therefore, is whether the face of the complaint shows that more than four years had run between the time the cause of action stated in the complaint accrued and the commencement of the action thereon. As we have said, the cause of action arises out of the undertaking on appeal. Liability upon such an undertaking accrues upon the affirmance of the judgment to which the undertaking relates. It was so held in Crane v. Weymouth, 54 Cal. 480, and Castro v. Clarke, 29 Cal. 11, "though," says the court in the last case, "the liability may continue until appellant delivers possession of the premises recovered." Objection, however, is made that the last case is not authority for the proposition that a cause of action on an undertaking to pay the value of the use and occupation of property from the time of an appeal from a judgment until delivery of the possession of the property, accrues on the affirmance of the judgment, because it was not demanded by the exigencies of the case. On the contrary, that was the very question at issue; and in that particular, as in almost all others, the case itself corresponds with the case at bar, for the undertaking upon which the action was founded was precisely similar in its terms to the undertaking in this case. It was also given to perfect an appeal from a judgment in ejectment recovered against 20 or more defendants; and, pending the appeal, the plaintiff conveyed to five or six of the, defendants portions of the demanded premises. After the transfers the judgment appealed from was affirmed, execution was issued, and the plaintiff sued on the undertaking to recover for the use and occupation of the land before he was put in possession. At the trial it was found as a fact that 14 of the defendants had had the use and occupation of the premises from the time of the appeal until the first of July, 1864,-five months before the issuance of the execution; and it was contended that there was no breach of the undertaking, and no cause of action to recover the value of such use and occupation, because the plaintiff, by his transfer of portions of the land, did not and could not take possession pursuant to the judgment. That the court answered thus: "The defendants' promise and undertaking was that the appellants named in the undertaking on appeal would pay for the use and occupation of the property for the term specified in the undertaking. The delivery of the possession of the premises to the plaintiff, pursuant to the judgment recovered and affirmed, was not a condition precedent to her right to maintain her action. The affirmance of the judgment by the supreme court was the condition on which the defendants' liability became absolute, though its extent in such a case might not be limited by that event." So, in this case, the action on the undertaking was brought after the affirmance of the judgment by the supreme court, and before delivery of possession of the recovered premises pursuant to the judg ment, for the value of the use and occupation of the premises for |