It can neither enlarge nor limit the relief sought by the allegations of the complaint. Donovan v. McDevitt, 36 Mont. 61, 65, 92 page 49; Rohr v. Stanton, 78 Mont. 494, 502, 254 page 869; Blackwelder v. Fergus Motor Co., 80 Mont. 374, 260 page 734; Murray v. Creese, 80 Mont. 453, 459, 260 page 1051; First National Bank v. Conner, 85 Mont. 229, 278 page 143. It is of little consequence where, as here, issues are joined, whether there is any prayer at all.

The named plaintiffs as well as those not named would of course have to present their claims. That portion of the prayer seeking the complete adjudication of the validity of each claim in this suit may be disregarded as surplusage. Rohr v. Stanton, 78 Mont. 494, 254 P. 869. When so disregarded the complaint states a proper representative suit to accomplish the result of marshaling and impounding the assets and appointing a receiver. If the plaintiffs should be unable to establish grounds for preserving, impounding and marshaling the assets, so that the first phase of the suit would be unsuccessful, the second phase as outlined above would never develop.

" The proposition that insolvency may be alleged in terms without stating the probative facts is supported by the following, in addition to the cases cited in the prevailing opinion: 3 Bancroft Code Pleadings, p. 2406; Rohr v. Stanton, 78 Mont. 494, 254 P. 869; Anders v. Kiser (S.D.) 256 N.W. 115; Coal City, etc., v. Hazard Powder Co., 108 Ala. 218, 19 So. 392; Oshry v. Haddad, 265 Mass. 199, 164 N.E. 69; Lammert v. Stockings, 27 Ind. App. 619, 61 N.E. 945. In other cases (particularly involving receiverships), it is said that while the allegations may be "safe from general demurrer * * * it would seem not to be safe from attack by a special demurrer which specifically objected to the generality of its language."

The determination of the insolvency of a bank may be alleged in terms without stating the probative facts. Rohr v. Stanton, 78 Mont. 494, 254 P. 869. An ultimate fact is alleged, and it was not necessary that the board set forth in detail the indebtedness owing by the bank and the value of assets in arriving at such determination. The order appealed from is affirmed.

for the purpose of foreclosing any interest or claim which they might have acquired subsequent to the time the lien of the mortgage attached. It is clear that this is the extent of the relief sought by the complaint as drafted, and it was sufficient for this latter purpose as against the general demurrer interposed by the defendants McLanahan. 4. It is true that the plaintiffs prayed "judgment against the defendants" for the amount due on the mortgage debt, without confining the prayer to judgment against the defendants Fred B. and Stacy Creese, but this was immaterial, as the prayer is no [3] part of the pleading or cause of action stated, and cannot enlarge the relief sought by the allegations of the complaint ( O'Neill v. Montana Elevator Co., 65 Mont. 259, 211 P. 222; Donovan v. McDevitt, 36 Mont. 61, 92 P. 49), and, in so far as the prayer is broader than the allegations of the complaint, it must be disregarded ( Arnold v. Sinclair, 11 Mont. 556, 28 Am. St. Rep. 489, 29 P. 340; Rohr v. Stanton, 78 Mont. 494, 254 P. 869). 5. The omission to confine the prayer for relief to a prayer for judgment against the makers of the note and mortgage was obviously merely an oversight, and could not be made the basis of proof to the effect that defendant J.F. McLanahan assumed and agreed to pay the mortgage debt, or to vest the court with jurisdiction to grant relief to either the plaintiffs or the defendants on issues not made by the pleadings and on evidence admitted over objection.

2. Again, as the prayer for relief is not a part of the [3] complaint, and will be disregarded ( Rohr v. Stanton, 78 Mont. 494, 254 P. 869), it is immaterial that it did not demand that the note and mortgage be canceled as satisfied by payment, in whole or in part; it did pray for general relief, and the complaint is sufficient, as against this eleventh-hour attack, as stating a cause of action for the cancellation of the mortgage. 3. Where, as in the case at bar, a mortgagee seeks to [4] foreclose his mortgage under a power of sale therein given, without action, and the mortgagor seeks to have the mortgage declared void, or to have it adjudged that the mortgage indebtedness has been paid, or to have the amount due judicially determined, the mortgagee may be enjoined from exercising his power of sale pending the determination of the questions raised by the mortgagor.

MR. JUSTICE STARK delivered the opinion of the court. The complaint in this action, with the exception of the name of the plaintiff and the amount involved, is identical with the one in Rohr et al. v. Stanton et al., ante, p. 494, 254 P. 869, decided by this court on March 15, 1927. As in the Rohr Case, so in this, the defendants filed a joint general demurrer to the complaint, which was sustained.

It will also be noted that the section does not refer to the accrual of a cause of action in favor of the creditor, but only to the time when the liability is created. If the statutory period commences to run at the time a right of action accrues, or if it may be said that the liability is "created" when the action may be brought against the stockholders, the rule that the action can only be brought after judgment against the corporation, and a return of an execution unsatisfied, would ordinarily apply (7 Fletcher's Ency. of Corporations, sec. 4231; 7 R.C.L. 392, and cases cited); but the purpose of such preliminary action is to show that the corporation has no assets from which the debt could be satisfied (or is insolvent; Rohr v. Stanton, post, p. 494, 254 P. 869), and, as the law does not require the doing of a useless thing (sec. 8761, Rev. Codes 1921; Montana Livestock Loan Co. v. Stewart, 58 Mont. 221, 190 P. 985), where it is shown that the corporation has no assets, the creditors may proceed against the stockholders without bringing such preliminary action (7 Fletcher, above; 26 Am. Eng. Ency. of Law, 2d ed., 1045). Here the record shows that the Cascade Bank transferred all of [4] its assets to the American Bank in February, 1920, under an agreement that the latter bank would assume its liabilities, and does not show that the Cascade Bank thereafter possessed assets of any nature whatsoever.