The particular matter in the opinion of Justice SIMPSON with which we do not agree is the assumption that the demurrer to the petition for mandamus sufficiently specifies the objections to the petition which are well taken.
We agree with him that the petition is defective, but the particular matter in which it is defective is in the failure to allege the substance of the claim presented in the probate court, and the substance of the documents referred to in the petition, and in alleging the conclusion of the pleader that they give "undisputed and indisputable written record evidence" of his interest in the property. But the question which confronts us is whether or not there are sufficient grounds set forth in the demurrer to raise that particular defect in the petition. In that connection we are confronted with the requirements of section 236, Title 7, Code of 1940, to the effect that no demurrer in pleading can be allowed except in matters of substance, which the party demurring must specify and no objection can be taken or allowed which is not distinctly stated in the demurrer. This statute does away with a general demurrer at law. Alabama Power Co. v. Curry, 228 Ala. 444,445, 153 So. 634; United States Health Accident Ins. Co. v. Goin, 197 Ala. 584, 73 So. 117; Sanders v. Gernert Bros. Lumber Co., 221 Ala. 469, 129 So. 46.
We do not find any ground of demurrer to the petition either as a whole or specifically to the matters set forth in paragraphs 14 and 15, which point out the defect to which we have referred above. We therefore see no escape from the proposition that there is error in sustaining the demurrer to the petition as originally filed. On the authority of the cases cited above, we think grounds 7 and 13 of the demurrer do not comply with section 236, Title 7, supra.
There were several amendments to which demurrer was also sustained, but the matter in those amendments, which may be sufficient to show petitioner's claim, are not alleged to have been in the documents setting up his claim in the probate court. The demurrer therefore to such amendments containing such a specific ground were properly sustained.
We think that there was reversible error in sustaining the demurrer to the original petition because there was no ground of demurrer which was specifically directed to the defect which we think exists in said petition. It is therefore necessary to reverse the judgment of the circuit court and remand the cause for further proceedings.
Reversed and remanded. *Page 569
GARDNER, C. J., and THOMAS and LIVINGSTON, JJ., concur.
BROWN and SIMPSON, JJ., dissent.
On Rehearing.