« ΠροηγούμενηΣυνέχεια »
set up as grounds of defense by the answer. With respect to the first, there is not the slightest indication in the answer, that such a defense was thought of ; on the contrary, the language of the answer, echoing the complaint, states the time of the husband's death so vaguely, that it is impossible to decide upon this demurrer, that, six months may not have expired Nor does it any where appear upon the pleadings, when the suit was commenced. This is hardly a compliance with the existing law as to a statement of the defense. As to the second objection, the answer merely says, that a portion of the premises are occupied by tenants who pay the defendant rent; that the greater portion is unoccupied; and that the defendant is not personally in the occupation of any part of the premises. But the answer does not say, that as regards any part of the premises, the defendant is not a proper party; that any other person should have been made a party; or that either of these grounds will be insisted upon as a defense. This, also, it seems to me, is not precisely according to the existing law. But suppose these defenses to be well set up, have they any validity? The code abolishes the forms of existing actions, and the distinction between suits at law and in equity, and provides that there shall hereafter be but one form of action (s. 69); and that all rights of action given or secured by existing laws, may be prosecuted in this single form of action. (s. 468). Now, before the code, there was, besides the action of ejectment for dower, a petition for admeasuring the same; and they both sought and obtained the same relief, viz., admeasurement of dower by commissioners. That is precisely the relief which the complaint in this case prays for ; and therefore it may quite as well be in the place of the petition as the ejectment; and if so, it is free from both these objections. Dower must be demanded before the commencement of an action for dower: in certain cases the plaintiff cannot recover costs; see last clause of section 307 of this code. Executors and Administrators—may sue on a note given to them as such, without making profert in the complaint of the letters testamentary or of administration. Bright v. Currie, 10 Leg. Obs., 104. False Imprisonment.—Where a complaint in an action for false imprisonment. stated at great length, all the circumstances, and the particular instrumentality by which the plaintiff was restrained of his liberty, held that it should be all stricken out. Shaw v. Jayne, 2 Code Rep., 69. 4 Pr. R., 119. The mode of stating a cause of action heretofore in use in such a case, is all that is necessary. Ib. Goods sold.—Where a complaint alleges “the sale and delivery of goods,” as a cause of action, it is not necessary to allege a promise on the part of the defendant to pay, &c. A statement of the facts constituting the cause of action, in ordinary language, &c., is now sufficient; that is, all the facts which upon a general denial, the plaintiff would be bound to prove to entitle him to a judgment. Glenny v. Hitchins, 2 Code Rep., 56; 4 Pr. R., 98; 3 Code Rep., 153; and see Dolner v. Gibson and Dows v. Hotchkiss, in note to section 140. Marriage, breach of promise of In an action for a breach of promise to marry, the complaint followed very closely the form in use before the code took effect, and after stating the promise, set out the breach in these words; “yet the defendant, in disregard of his said promise and undertaking, but contriving and fraudulently intending craftily and subtlely to deceive and injure the plaintiff in this respect, did not nor would perform his said promise.” On motion to set aside the complaint, the court (Ulshoeffer, judge) said the object of the code is at once to render pleadings intelligible and concise. If that object can be effected by adopting any part of the former system, there is nothing in the code to prevent it. The complaint is sufficiently plain to apprise the defendant of the charge against him. The words in in italic are perhaps obscure and unnecessary, and must be stricken out. Leopold v. Poppenheimer, 1 Code Rep., 40. Personal Property.—Where a suit was commenced by summons and complaint, for an unjust detention of personal property, and the plaintiffs demanded judgment for the value thereof only, and at the time of the service papers were also served for the immediate delivery of personal property; held, that the class to which the action belonged must be determined by the relief demanded in the complaint, and, consequently, it would fall under the second instead of the sixth class of section 167. £o" v. Green, 2 How., 337. Spalding v. Spalding, 1 Code Rep., 64; 3 Pr. R., Claims for injuries to personal property and claims for its possession are substantially different causes of action. Ib. Receiver.—When a plaintiff sues as receiver, he should at least state the place of his appointment, and distinctly aver that he was appointed by an order of the court. White v. Low, 7 Barb. S. C. R., 204. The defendant in such a suit has a right to insist that the facts constituting the appointment of the plaintiff, as set out, shall be sufficient to show one has been made, and that these facts be so set out as to be triable. Ib. Slander—The complaint, in an action for slander, must allege the words to have been spoken in the presence and hearing of some person. If the complaint omit such an allegation, and the defendant has not been misled or injured, the plaintiff will be allowed to amend, without costs. Wood v. Gilchrist, 1 Code Rep., 117; Anon., 3 Pr. R., 406. But the word “published” in the complaint imports, ez vi termini, the uttering of words in the presence and hearing of somebody. Duel v. Agan, 1 Code Rep., 134. The common pleas held that the rule which requires a statement of the cause of action renders it necessary, in a suit for slander, to set forth the precise words used. Finnerty v. Barker, 7 Leg. Obs., 316. Where, therefore, a complaint alleged that the defendant charged the plaintiff that she had been guilty of stealing, or some other misdemeanor; held, that it was demurrable for want of a sufficient statement of facts to constitute a cause of action. The plaintiff should have stated distinctly what the charge was, so that the defendant might have known what he was sued for. Ib. The omission to state the time or place of the slander is not a ground of demurrer; the court can order the pleading to be made definite by amendment. Ib. See further, notes to sections 164, 167 of this code. Miscellaneous—A complaint need not be positive; it may be on information. Finnerty v. Barker, 7 Leg. Obs., 316. A complaint for goods, &c., received in violation of the statutes against usury, must comply with the requisitions of the revised statutes. 2 R. S., 352, s. 3. Schroeder v. Corning, 2 Coms., 132. It is said that where the plaintiff desires, in case he obtain a judgment, to issue a ca. s.a. against the defendant, it is necessary to allege in the complaint the matters collateral to the cause of action, which justify the arrest of the person. Barker v. Russell, 1 Code Rep., N. S., 5. That decision was reversed on appeal to the general term. 1 Code Rep., N. S., 57. In Lee v. Elias, in the superior court, 1 Code Rep., N. S., 116; 3 Sand. S. C. R., 736, the complaint, which was on a promissory note, also contained allegations that the goods for the price of which the note was given, were fraudulently procured from the plaintiffs; a motion was made to strike out the allegations as to the fraud, and Campbell, J., with the concurrence of all the other justices, granted the motion, and said, “Great oppression might result from allowing this course of pleading to be followed. A summons may contain a demand for a specific sum of money, which a defendant owes, and against which he can make no defense. A complaint may be filed, demanding the judgment for the money specified in the summons, and also setting up gross frauds on the part of the defendant; and the defendant may thus be defaulted, and made to admit charges of fraud which have never come to his notice, and thus, also, subject himself to arrest and imprisonment. In Secor v. Roome, 2 Code Rep., 1, Jones, J., says, the question of fraud must be tried on affidavits by the judge who granted the order of arrest; and he held that no allegation of fraud should be set out in the complaint. See, also, 3 Code Rep., 211, 169,156, and Cheney v. Garbutt, 1 Code Rep., N.S., 166. But notwithstanding these decisions, the supreme court, at a general term composed of Mason, Monson, and Shankland, J.J., in the case of Corwin v. Freeland, 6 Pr. R., 241, held, that where the cause of arrest exists at the time of the commencement of the action, the grounds of arrest should be stated in the complaint. The question as to the insertion of the grounds for arrest in the complaint was not the precise question involved in the case of Corwin v. Freeland. But Mr. Justice Shankland, who delivered the opinion of the court, examined the question as to the form of the complaint at considerable length, and states his reasons for the conclusion, “that the grounds of arrest should be inserted in the complaint,” in an opinion covering twelve printed pages. His reasoning throughout seems to us altogether fallacious, and his conclusion at variance with the principles of pleading and the practice of the profession. We believe it is not customary to insert in the complaint any allegations of fraud, or other ground for requiring an order of arrest.
In a suit by a foreign corporation, the complaint need not state the act of incorporation or charter at large, or even the title of the act or grant, or the date of its passage. 2 R. S., 459, ss. 1–13. Holyoke Bank v. Haskins, 4 Sand. S. C. R., 675.
In actions given by statute, or upon any special statutory provision, the complaint should follow the wording of the statute and refer to the statute by its title. Schroeppel v. Corning, 2 Coms, 132.
Section 143. Defendant to demur or answer.
§ 143. [121.] Defendant to demur or answer.—The only pleading on the part of the defendant is either a demurrer or an answer. It must be served within twenty days after the service of the copy of the complaint.
The answer and demurrer are different pleadings, and by the fact that they are on one paper and in form connected they do not lose their distinct character; per Sill, J., in Howard v. Michigan Southern R. R. Co., 5 Pr. R., 206, 207.
This section, which is identical with section 121 of the code of 1848, has been held not to apply to pleadings in justices' courts. Cornell v. Smith, 2 Sand. S. C. R., 290. Where a defendant omits to answer within the time prescribed by this section, the court has power, after the expiration of the time to answer, to let the defendants in to make a defense. Lynde v. Verity, 1 Code Rep., 97. Salutat v. Downes, 1 Code Rep., 120. Allen v. Ackley, 4 Pr. R., 5. 2 Code Rep., 21. Foster v. Udell, 2 Code Rep., 30. But where, in such a case, the plaintiff has regularly entered judgment before the application to be let in to answer, and suggests that he will be in danger of losing his demand if the judgment is set aside, as the defendants are in doubtful circumstances, and he asks, further, that the defendants may be restrained from setting up the statute of limitation as a defense, the court will, where the default is not satisfactorily excused and the affidavit of merits is merely general, only admit the defendant to come in and answer upon the terms of paying costs, not setting up the statute of limitations, and let the judgment stand as security to the plaintiff. Allen v. Ackley, 4 Pr. R., 5. 2 Code Rep., 21. In a motion to be admitted to defend after a judgment by default regularly taken, the defendant ought to disclose the nature of his defense, or serve with his motion papers a copy of his proposed answer, so that the court may judge of the merits of the proposed defense. Ib. On a motion to set aside a judgment taken for want of an answer, where the defendant showed a good defense on the merits, and that the default was occasioned by a misapprehension as to the effect of a stipulation extending the time to answer, it was asked by the plaintiff that the defendant should not be relieved except upon the terms that he should not set up the defense of usury; but the court (Parker, J.) opened the default without such a condition as that asked by the plaintiff, and said, “So long as the statute makes the taking of usury a defense, it was entitled to be treated like every other legal defense, and he would make no discrimination in imposing terms.” Grant v. McCaughin, 4 Pr. R., 216. See 6 Hill, 223–227.
An order enlarging the time to answer is an extension of the time to demur. Broadhead v. Broadhead, 4 Pr. R., 308. 3 Code Rep., 219. An answer put in after the time to answer expires, and before judgment is entered, but without any order permitting it to be put in, is irregular. Dudley v. Hubbard, 2 Code Rep., 70. Foster v. Udell, ib., 30. Mandeville v. Winne, 1 Code Rep., N. S., 161; ib., 45 O'Brien v. Catlin, ib., 273.
Where an order extending the time to answer was revoked, the defendant was compelled to answer within the time which he originally had, or his default might be entered Brown v. St. John, 19 Wend., 617.
Where an order is made for service of a summons by publication, the defendant has until twenty days after the expiration of the time prescribed for publication, in which to put in his answer. Tomlinson v. Van Vecthen, 1 Code Rep., N. S., 317. And where the summons is personally served out of the State, the defendant has until twenty days after the expiration of the time prescribed for publication, in which to put in an answer.
§ 144. [122.] When defendant may demur.—The defendant may demur to the complaint when it shall appear upon the face thereof, either— 1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; or, 2. That the plaintiff has not legal capacity to sue; or, 3. That there is another action pending between the same parties, for the same cause; or, 4. That there is a defect of parties, plaintiff or defendant; or, 5. That several causes of action have been improperly united; or, * 6. That the complaint does not state facts sufficient to constitute a cause of action.
Note to Subd. 3.
“It has never been held that the mere pendency of a suit in a foreign tribunal can be available to stay a suit for the same cause of action pending here; and unless the legislature have expressly made it so, I see no good reason why the rule should be changed. It is evidently the intention of the sections of the code to which I am referred (sections 144, 147), not to enlarge a defense or create a remedy, but merely to direct the mode*in which defenses or objections already available by law may be taken advantage of, the nature of those defenses or objections being left unaltered. And the language here used must be taken to mean, that a defense of another action pending, when available, may be set up by demurrer when it shall appear on the face of the complaint, and by answer when it does not.” Per Edmonds, J., in Burrows v. Miller; 5, Pr. R., 51, 52. See also 9 Johns. R. 221., 12 ib. 99.
A foreign attachment pending in another State was formerly pleadable in abatement. 5 Johns. R., 101 ; 20 Johns, R., 229; 8 Cowen. 311 ; 4 Johns. R., 508; 4 Johns R., 521. It is conceived that the pending of such an attachment would not now be any defense. To an action on a judgment a writ of error pending at the commencement of the action was pleadable in abatement, 2 Johns. C. 312. It is no defense to an action, that aster its commencement another action has been commenced for the same cause. 1 Wheat.,215; 21 Wend, 341 ;3 ib., 258; 9 Johns., R., 221; 8 Cow., 311 ; but where a party issuing in two courts for the same cause of action, he may be compelled to elect in which court he will proceed. Hammond. v. Baker, 1 Code Rep., N. S., 105.
Where B., after setting up new matter in answer to an action by A., brought a cross action against A. sounded on the same matter as his answer, and A. moved in the first action that B. should elect either to abandon his answer or his cross action, held: that the motion should have been in the cross action for a reference to inquire whether the cross action was for the same cause as the new matter set up in the answer, and if so, then for an order dismissing the cross suit. Farmers' Loan and Trust Co., v. Hunt, 1 Code Rep. N. S., 1.
Where it appears on the face of the complaint that there is another action pending between the same parties for the same cause, the remedy is by demurrer. Where it does not appear on the face of the complaint that another action is pending, &c., then if in fact another action be pending, the proper mode for the defendant to avail himself of that fact is by answer setting forth the pendency of such action. This rule applies as well to an action for a partition as to any other action. Hornfager v. Hornfager, 1 Code Rep. N. S., 412.
As to the practice on an answer of another suit pending, see Groshens v. Lyons. 1 Code Rep. N. S., 348.
Note to Subd. 4.
A demurrer for nonjoinder of parties, is well taken where it appears that the court cannot determine the controversy before it without prejudice to the rights of others, nor by saving their rights. (Code, s. 122.) Wallace v. Eaton, 3 Code Rep., 161 ; 5 Pr. R., 99. It seems, that section 122 of the code is the controlling section in determining whether a demurrer for defect of parties is well taken. Ib. If the court can determine the controversy before it, without prejudice to the rights of others, or by saving their rights, then a demurrer for nonjoinder of such parties is not well taken. If on the contrary a complete determination of the controversy cannot be had without the presence of other parties, then the demurrer is well taken, and the court should order them to be brought in by amendment of the pleadings; and which will generally be done by allowing the amendment on payment of costs. Ib. Where a complaint set up the recovery of a judgment against W. R. K., and that an execution had been returned nulla bona ; and that the defendants and the debtor [W. R. K., who was not made a defendant], had colluded to defraud the plaintiff and other creditors by a sale of goods, &c.; and also that the debtor had made a general assignment to one D. L. for the benefit of creditors; that D. L. had neglected and refused to execute the trust created by such assignment; and praying that the sale by W. R. K. to defendants, might be declared fraudulent, and that they pay over to the creditors of W. R. K., and that D. L. [who was made a defendant] might be discharged from proceeding any further under the assignment, and that a receiver be appointed, &c., held, that W. R. K. was a necessary party to the action. The demurrer for defect of parties sustained. Ib. A defendant not prejudiced by a party being made a plaintiff, cannot demur because the latter is joined as plaintiff. Crosby v. Berger, 4 Edwards Ch. R., 210.
Note to Subd. 5.
As to what causes may be joined, see section 167 of this code; and section 172 as to the power of the court after allowance of a demurrer for the cause specified in this sub-division, to order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action contained in the complaint demurred to.
Note to section generally.
A party can demur only in the cases prescribed by the code. He cannot except for insufficiency or impertinence. The doctrine of exceptions belonged to the practice of the court of chancery, and has been swept away. Per Willard, J., in Royce v. Brown, 3. Pr. R., 391, 395. This section corresponds to section 122 of the code of 1848, and has been held not to apply to pleading in justices' courts. Cornell v. Smith, 2 Sand. S. C. R. 290. We must forget all old rules respecting demurrers, and regard a demurrer now as a pleading created, with its character and office defined by the code. Per Gridley J., in Manchester v. Storrs, 3, Pr R., 410. The demurrer is not a substitute for the exception for insufficiency in chancery, but it is a mode of objecting to an entire defense on legal grounds, and in that respect analogous to a demurrer to a plea under the old common law practice. Cobb v. Frazee, 3 Code Rep, 43; 4 Pr. R., 413. It is supposed that a defendant may assign as many causes of demurrer as he thinks fit, and is one be sustained, the demurier will be allowed (Harrison v. Hogg,