
    The State of Missouri ex rel. Graham Oddle, Appellant, v. John D. Sherman, Respondent.
    1. City Ordinances — City Charters — Sow set forth in pleading. —Where a party asserts a right founded upon provisions of city or town ordinances, the pleading must set forth those provisions, in whole or in substance. The courts cannot take judicial notice of such ordinances. But when the material • allegations of an information were founded upon a city charter, and the act was pleaded by its title, the court, under soction 40 of the practice act (Gen. Stat. 1865, p. 661), could take judicial notice of its provisions.
    2. Quo Warranto—Office of City Treasurer—Information relating to—Pleading— What Averments sufficient.—Where, by the terms of a city charter, the-corporate powers were vested in a mayor and councilmen, to be elected by the qualified voters of the city, and power was expressly given to the mayor and council to appoint a city register, collector, and such other officers as they might at any time deem necessary, the averment contained in an information claiming the office of city treasurer, that the mayor and city councilmen had been duly elected, and the relator duly appointed and qualified, was a sufficient allegation of these main facts. If there were any ordinances defining the manner of election or appointment, it would devolve upon defendant, under the pleading, to produce them, and show that either the election of the-mayor and councilmen, or the appointment of the treasurer, had not been conducted in conformity therewith, when the relator had first produced sufficient prima facie evidence to sustain his information.
    <}. Practice—Pleading made more definite, at whose instance—Construction of Statute.—The provision of the practice act (Gen. Stat. 1865, chap. 165, ¡i 20) that the court may require a pleading to be made more definite and certain, would seem to imply that it must be done on motion of the adverse party.
    
      
      Appeal from Fifth District Court.
    
    The facts material to the case appear in the opinion of the court.
    
      Jlsper 4' Follará, for appellant.
    I. The court below erred in reversing the judgment of the Circuit Court on the ground that the information did not set out the ordinance of the city of Chillicothe by which the office of treasurer was created, for the following reasons : 1. The charter, which is well pleaded, gives ample authority to appoint or elect a treasurer, and no ordinance is required to create the office. The reference to the ordinance No. 8 is mere surplusage. Section 23 of the charter of Chillicothe—printed charter and ordinances, p. 6 — reads as follows : £ £ The mayor and board of councilmen shall have power to appoint a city register, assessor, collector, and such other officers as they may at any time deem necessary, who shall be sworn faithfully to discharge the duties of their offices, and shall, when required, give bond, with satisfactory security, to the corporation, for the due performance of their respective duties.” This section gives ample power to appoint; and the petition shows that the authority was pursued. 2. The information sets out that Graham Oddle was duly appointed to the office of treasurer of Chillicothe; that he qualified and gave bond, with security, which was approved by the council—which are facts that, if not denied, give him title to the office. These facts make, a full and perfect title, and are admitted by the demurrer. If the information alleges that the relator was duly appointed and qualified, it contains facts sufficient. 3. In setting out this title it was not necessary to set out the ordinance creating the office or appointing the treasurer. The title sufficiently appears without it. General certainty is sufficient; and pleadings are to be liberally construed with regard to doing substantial justice. (Gen. Stat. 1865, p. 661, ,§ 37; Bersh v. Dittrick, 19 Mo. 129 ; Beman v. Tugnot, 5 Sandf. 153 ; How. Frac. 267.)
    H. The court below committed no error in sustaining motion of relator to strike out and make answer more definite and certain, because: 1. The answer denied the relator’s title, and at the same time justified holding the office. The answer was inconsistent. It created an issue in which the relator held the affirmative, and at the same time stated another issue in which the respondent below held the affirmative. This is not allowable. (Gen. Stat. 1865, p. 659, § 14; id. p. 661, § 39 ; Houston v. Lane; 39 Mo. 495 ; Darrett v. Donnelly, 38 Mo. 492 ; Adam’s Adm’r v. Trigg, 39 Mo. 141; Burnet v. Wagner, 39 Mo. 385; Atterbury v. Powell, 29 Mo. 429.) 2. That portion not stricken out was indefinite and uncertain, and the precise nature of the allegations or the denials was not apparent. . The refusal to comply with the order of the court left the party without answer. He took leave to answer, and then refused to file one. (Gen. Stat. 1865, p. 660, § 20.)
    
      McFerran fy Collier, for respondent.
    I. The second amended information does not state facts sufficient to constitute a cause of action. The appellant claims his right to the office of treasurer through certain ordinances of the corporation of the city of Chillicothe, referred to in his second amended information, but fails to set out said ordinances, or any part thereof; by reason of which the said information is not sufficient in law to support a judgment against said respondent. (Mooney v. Kennett, 19 Mo. 555 ; Ang. & Ames on Corp. §§ 719, 758; 1 Blacks. Com. p. 58, § 86; 1 Chitty’s Plead. 247.)
    H. The acts of usurpation by respondent are not set out, nor a vacancy alleged in the office at the time of the assumed appointment of appellant to the office, nor is there an allegation that the appellant was appointed as the successor of respondent in said office. (Drome v. Scammel, 7 Cal. 393 ; U. S. Dig. vol. 19, p. 588, § 15; Ang. & Ames on Corp. §§ 719, 758.)
    HI. The information must state the facts constituting the appellant’s right to the office as his cause of action against the respondent. (Gen. Stat. 1865, p. 658, § 3 ; U. S. Dig. vol. 13, p. 559, §§ 1, 2; 23 Wend. 193 ; 4 Cow. 106, 108, 297; Ang. & Ames on Oorp. 719, 758 ; U. S. Dig. vol. 23, p. 446, and cases cited. )
    TV. The information does not show any right in the mayor and councilmen to appoint appellant treasurer of the city of Chilli-, cothe. It does not appear who composed the council that counted the vote and installed them into office as councilmen for said city. It must appear that a majority of the council was present, before the act can have any legal vitality. (2 Wheat. Sel. 1178,1179.)
    V. The court below had no power to require the respondent to make his answer more definite and certain, without specifying and deciding wherein it was indefinite and uncertain.
    VI. The charter and amendments of the incorporation of the city of Chillicothe are not well pleaded in the second amended information. Said charter and several amendments thereto are referred to by their title and the day of their passage, which simply enables the court to take judicial notice thereof; but it is not alleged in said information what act or acts were done by authority of the several statutes aforesaid respectively. (Gen. Stat. 1865, p. 661, §§ 40, 41.)
   Holmes, Judge,

delivered the opinion of the court.

This was an information, in the nature of a quo warranto, filed in the Circuit Court of the county of Livingston. The information alleged, in substance, that certain persons named were, on the second day of April, 1867, duly elected mayor and councilmen of the city of Chillicothe, and that on the third day o.f May there-afterward the said mayor and councilmen appointed the relator treasurer of the city, and that he was duly qualified to and entered upon the duties of the office, but that the defendant had unlawfully usurped said office, and judgment of ouster was demanded against him. A demurrer to the information was overruled.

The first part of the answer consisted of specific denials of the material allegations of the information; the second part contained a statement of the title and right under which the defendant claimed.

A motion to strike out certain portions of the answer, including the whole of the second portion, as above, was sustained, and the court required the defendant to make tbe remaining part more definite and certain. The relator’s motion bad assigned no reasons for striking out this part, nor in any way pointed out wherein it was deemed indefinite and uncertain. Tbe defendant declining to amend bis answer in this respect, a judgment by default was given against him as for want of an answer. Exceptions were duly taken. On appeal to tbe District Court, tbe judgment was reversed on tbe ground that tbe information was demurrable, and that tbe motion in arrest should have been sustained.

Tbe first question concerns tbe sufficiency of tbe information. Tbe objection was that it did not set forth tbe essential provisions of tbe city ordinances under which tbe election for mayor and city councilmen bad been held and tbe relator appointed treasurer. There is no doubt that where tbe party asserts a right founded upon such ordinances, tbe pleading must set them forth in whole or in substance. Tbe courts cannot take judicial notice of tbe ordinances of a town or city. (Mooney v. Kennett, 19 Mo. 555.)

But here tbe material allegations were founded upon tbe city charter. Tbe corporate powers were vested by tbe charter in a mayor and councilmen, to be elected by tbe qualified voters of tbe city, and power was expressly given to tbe mayor and council to appoint a city register, assessor, collector, and such other officers as they might at any time deem necessary. (Act of March 1, 1855.) This act was pleaded by its title, in accordance with tbe statute (Gen. Stat. 1865, cb. 165, § 40), and in such manner that tbe court might take judicial notice of its provisions. Tbe averment that tbe mayor and councilmen bad been duly elected, and tbe relator duly appointed and qualified, was a sufficient allegation of these main facts. (People v. Crane, 12 N. Y. 433. ) A lawful authority for these proceedings was contained in tbe charter. Tbe minor details were more properly matter of evidence. If there were any ordinances defining tbe manner of election or appointment, it would devolve on tbe defendant, under this pleading, to produce them, and show that either tbe election of the mayor and councilmen, or tbe appointment of tbe treasurer, bad not been conducted in conformity therewith, when tbe relator bad first produced sufficient prima fade evidence to sustain bis information. On this point we think tbe District Court was in error.

Tbe next question is upon tbe action of tbe Circuit Court in requiring tbe defendant to make tbe remaining part of bis answer more definite and certain, and in giving judgment against bim by default on bis failing to amend as required. On this point we observe that tbe relator’s motion bad given no reasons for this action, nor pointed out wherein this part of tbe answer was indefinite or uncertain. Tbe motion related only to tbe portion wbicb was stricken out by the court for tbe reasons specified. Tbe statute requires that all motions shall be accompanied by a written specification of tbe reasons upon wbicb they are founded, and that no reason not so specified shall be argued in support of tbe motion. (Gen. Stat. 1865, cb. 165, § 48.) Tbe latter clause of tbe twentieth section of tbe same act (cb. 165, § 20) provides that tbe court may require a pleading to be made more definite and certain. It is not expressly said that it must be done on motion of tbe adverse party, though that would seem to be implied; but without undertaking now to lay this down as an imperative rule, we may remark that there is an obvious reason for such practice in tbe consideration that both tbe court and tbe other party would need to be informed in what particular respects, and in what part, tbe pleading was supposed to be defective. But it is sufficient for tbe purpose of this case that no good reason appears for requiring this part of tbe answer to be made more definite and certain. It consists merely in specific denials of tbe several allegations of tbe relator’s information. It makes distinct issues of fact upon tbe election of tbe mayor and councilmen, and upon tbe appointment of tbe relator to be treasurer, wbicb are tbe most material averments. We do not see that these denials need be more specific or certain than they are. We think, therefore, that tbe Circuit Court committed error in giving judgment by default for wrant of an answer.

Some other exceptions appear in'the record wbicb were not insisted upon in tbe argument, and wbicb it is not deemed necessary to notice further. We observe only that tbe second part of the answer which was stricken out did not constitute a good special defense by way of confession and avoidance. (Tiffany v. Smith, 1 N. Y. 374-882; Houston v. Lane, 39 Mo. 495.)

Eor these reasons the judgment of the District Court, reversing the judgment of the Circuit Court, will be affirmed, and the cause remanded to the Circuit Court for further'proceedings, in accordance with this opinion.

The other judges concur.  