We are not here concerned with the question of whether the circuit judge should have issued the rule nisi. It is quite true that when a petition is presented for the issuance of a temporary writ or a rule nisi, the presumptions are taken against petitioner, and the temporary writ or rule nisi should not issue unless he shows a right without the aid of favorable presumptions. Dean v. Coosa County, 232 Ala. 177, 167 So. 566; 38 Corpus Juris, § 581, p. 866.
But when the rule nisi has issued, any defendant may demur to the petition, plead or answer it as to all such matters as may be necessary to his defense. Section 1072, Title 7, Code. Although in other jurisdictions the rule is said to be different (38 Corpus Juris § 629, p. 899), the statute supra provides for testing the sufficiency of the petition by demurrer after the rule nisi has issued. Lewis v. Jerkins,215 Ala. 680, 112 So. 205. And if any part of same is too general or indefinite, it may and should be tested by a demurrer on that ground. State Tax Comm. v. Tennessee Coal Iron R. Co.,206 Ala. 355, 89 So. 179. And on such demurrer, the averments of the petition are taken as true. McCrary v. Brunson, 204 Ala. 85,85 So. 396.
It is true that the petition should aver sufficient facts to establish the legal right, and that by clear averments, and mere legal conclusions are not sufficient. And when a petition is presented for mandamus, based upon legal conclusions without a statement of the facts from which the conclusion is drawn, or based upon the pleader's interpretation of what an instrument of title or other document shows without setting out the substance of it or its legal effect, the court to which it is so presented may well refuse to issue a rule nisi. But when it is issued the sufficiency of it may be tested by demurrer, and that is the only manner in a right though not properly stated. If that right appears by improper averment, the only manner in our practice to test that sort of pleading is by a demurrer on that ground.
The petition here alleges in substance that certain documents and instruments which were before the probate judge demonstrated the existence of a substantial claim by this petitioner. If that is true, then his petition shows a right, but by improper averment. Unless objection is properly made, pointing out that impropriety, it is waived. The demurrer must be directed in some ground to the improper manner of pleading. Williams v. Lyon, 181 Ala. 531, 61 So. 299. If not so, such imperfect manner of pleading should not be further considered by the court, once the rule nisi has issued, and it shows a legal right, though not clearly pleaded.
The question before us is the ruling of the court on the demurrer which was filed, not on a demurrer which could have been but was not filed, and whether the petition shows a cause of action even though defectively pleaded. We are not otherwise considering the sufficiency of the petition. It may be that if the petition did not show such a right as authorized mandamus, its dismissal was without injury. Chilton County v. State,146 Ala. 439, 41 So. 463; State v. Cunningham, 216 Ala. 423,113 So. 309. A demurrer was not necessary to justify a dismissal, when it does not state a cause of action. Lesslie v. Richardson, 60 Ala. 563.
The petition does allege the existence of that right and that the same was presented to the probate court. It was not well pleaded, but it was pleaded. A demurrer, specially directed, must be used to test the sufficiency of the manner of pleading, if it states a cause of action. Williams v. Lyon, supra.
In the case of Farson v. Bird, 197 Ala. 384, 72 So. 550, relied on by appellee, the petition was for a mandamus against the county treasurer commanding him to pay county warrants or, in the alternative, for a summary judgment. The opinion in the last paragraph shows that a demurrer was interposed. It is said that the petition merely alleges the conclusion of the pleader that the officer had breached his official duty in failing or refusing to pay the warrants not supported by any facts alleged. The Court held that mandamus may be the proper remedy, but against different officers, not the county treasurer. The question of the sufficiency of the petition was raised on demurrer. Of course the expression of a legal conclusion as to the duty of the county treasurer taken alone is not good pleading, and the demurrer ought to be, *Page 570 and it was sustained, and as to him there was no cause of action, as held in that case.
When the complaint fails to state a cause of action, it will not support a judgment. Chandler v. Price, 244 Ala. 667,15 So.2d 462; section 570, Title 7, Code. The question may be raised in various ways. Chandler v. Price, supra.
It is clear that neither ground 7 nor 13 or any other presents the insufficiency of the petition in the manner of pleading the substance of the contents of the instruments and documents set out in paragraphs 14 and 15.
The demurrer is as in Brewer v. Watson, 65 Ala. 88(5), 98. The ground held insufficient in that case is that "the complaint does not contain or set forth any facts which show that the plaintiff has a right to recover the damages claimed." This was held not to be the specification of any cause of demurrer.
Whether a ground of demurrer so framed is sufficient depends upon the nature of the case and of the right sought in the complaint. This is illustrated in Wallace v. Markstein,147 Ala. 262, 40 So. 201, cited by appellee in brief. (This was in equity, but at a time when a general demurrer was not available. A different rule now exists. Equity Rule 14, Code 1940, Tit. 7 Appendix. There the question was whether the complainant was one of the persons authorized to exercise the right of redemption conferred by statute, which states what classes of persons may exercise it. It held that the meaning of such a ground of demurrer is that "the complainant has not shown by the bill that complainant occupies either of the relations mentioned in the statute." That means to say, it was observed, that it does not allege or show that he was either "the debtor, his vendee," or etc. (It therefore did not state a "cause of action," and the demurrer should have been sustained.) The question was not as to its sufficiency in stating the cause of action, but in not stating one at all. See, Lesslie v. Richardson, supra.
The difficulty with the brief on application for rehearing and with the dissenting opinion is in the failure to realize that the petition may state a "cause of action," so to speak (that is, that he has a substantial claim in the property sought to be condemned), but may do so defectively, and that when so the only way to reach that defect is by a special demurrer pointing it out. The petition does set up the existence of documents which were before the probate court and which it alleges show an interest of petitioner in the property sufficient to justify his right to intervene. But he should have set up at least the substance of those documents or their legal effect. Roney v. Dothan Produce Co., 217 Ala. 475,117 So. 36; Adams v. Davis, 16 Ala. 748; Moundville Lumber Co. v. Warren, 203 Ala. 488, 83 So. 479.
It should always be carefully noted in analyzing an opinion on the subject whether the court is considering a defect in pleading on an apt demurrer, or whether it is considering with or without demurrer the sufficiency of the petition or complaint to state a cause which will support a judgment.
In this case both questions are involved. We are considering whether there is an apt demurrer to a defect in pleading, and since the court dismissed the petition whether it states a cause of action, though defectively, but such as will be sufficient to support a judgment. The demurrer to the petition did not reach the defect, and the petition does state a cause of action which will support a judgment of intervention, though it may not be well pleaded.
GARDNER, C. J., and LIVINGSTON, J., concur.