mur to the complaint [petition] when it shall appear on 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 [or misjoinder, California] of parties plaintiff or defendant; or, 5, that several causes of action have been improperly united; or, 6, that the complaint [petition] does not state facts sufficient to constitute a cause of action."1 "When any of the matters enumerated [in the last section] do not appear upon the face of the complaint [petition], the objection may be taken by answer. If no such objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint [petition] does not state facts sufficient to constitute a cause of action."

2

§ 434. The foregoing provisions describe the complaint or petition the following clauses-some of which, however, are not found in all the codes- comprise the general rules applicable to all pleadings, which regulate their form and contents, and determine their sufficiency, the general principles, in short, which characterize the system of pleading provided for by the reformed procedure: "In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed

1 New York, § 144; Wisconsin, ch. 125, § 5; Ohio, § 87; Minnesota, § 80; Kansas, § 89; Nebraska, § 94; Indiana, § 50; Missouri, art. 5, § 6 (adding, “or, 7, that a party, plaintiff or defendant, is not a necessary party to a complete determination of the action"); California, § 430 (adding, "7, that the complaint is ambiguous, unintelligible, or uncertain"); Oregon, § 66 (adding, "or, 7, that the action has not been commenced within the time limited in the code "); Kentucky, § 120; Florida, § 95; Dacotah, § 97; North Carolina, § 95; South Carolina, § 167. In Iowa, the first four subdivisions of § 2648 are the same as those given in the text, and the section then proceeds: "or, 5, that the facts stated in the petition do not entitle the plaintiff to the relief demanded; or, 6, that the petition on the face thereof shows that the claim is barred by the statute of limitations; or fails to

show it to be in writing when it should be so evidenced; or, if founded on an account or writing as evidence of indebtedness, and neither such account or writing, or a copy thereof, is incorporated with, or attached to, such pleading, or a sufficient reason stated for not doing so."

2 New York, §§ 147, 148; Wisconsin, ch. 125, §§ 8, 9; Ohio, § 89; Missouri, art. 5, 10; Minnesota, §§ 77, 78; Kansas, § 91; Nebraska, § 96; Indiana, § 54; California, §§ 433, 434; Florida, §§ 98, 99; Oregon, §§ 69, 70; Dacotah, §§ 100, 101; North Carolina, §§ 98, 99; South Carolina, §§ 170, 171. The Iowa code, § 2650, after the same provision as that in the text, adds, "If the facts stated by the petition do not entitle the plaintiff to any relief whatever, advantage may be taken of it by motion in arrest of judgment before judgment is entered."

with a view to substantial justice between the parties."1 "If irrelevant or redundant matter be inserted in a pleading, it may be struck out on motion of any person aggrieved thereby; and when the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defence is not apparent, the court may require the pleading to be made definite and certain by amendment." 2" All fictions in pleading are abolished; " 3 "A material allegation in a pleading is one essential to the claim or defence, which could not be struck from the pleading without leaving it insufficient. Neither presumptions of law nor matters of which judicial notice is taken need be stated in the pleading.' The following special provision, which is found only in a portion of the codes, and is not impliedly contained in the general principles common to them all, is quoted because of its practical importance as a rule of procedure in those States whose legislation has adopted it: "If the action, counterclaim, or set-off, be founded on an account, or on a note, bill, or other written instrument, as evidence of indebtedness, a copy thereof must be attached to and filed with the pleading. If not so attached and filed, the reason thereof must be shown in the pleading.' 195

§ 435. Ample provision is made for the amendment of pleadings, either at the trial itself, or at any other time in the progress of the cause. The following sections are contained in all the codes, with some unimportant verbal variations in a few

1 New York, § 159; Wisconsin, ch. 125, § 23; Ohio, § 114; Missouri, art. 5, § 37; Minnesota, § 93; Kansas, § 115; Nebraska, § 121; Indiana, § 90; California, § 452; Florida, § 109; Oregon, § 83; Dacotah, § 112; North Carolina, § 119; South Carolina, § 182.

2 New York, § 160; Wisconsin, ch. 125, § 24; Ohio, § 118; Missouri, art. 5, § 20; Minnesota, § 94; Kansas, § 119; Nebraska, § 125; Indiana, § 90; Iowa, §§ 2719, 2720 (somewhat altered); California, § 453 (altered verbally); Florida, § 110; Oregon, § 84; Dacotah, § 113; North Carolina, § 120; South Carolina, § 183.

constitute the cause of action or defence shall be stated."

4 Ohio, §§ 128, 129; Missouri, art. 5, § 39 (only the last clause); Kansas, §§ 129, 130; Nebraska, §§ 135, 136; Indiana, § 88 (only the last clause); Cali'fornia, §.463 (first clause only); Oregon, § 93 (the first clause only).

5 Ohio, § 117; Kansas, § 118; Nebraska, § 124; Missouri, art. 5, § 51, the instrument itself must be filed with the pleading; Indiana, § 78,- when any pleading is founded on a written instrument or account, the original, or a copy, must be filed with the pleading. In Iowa, the section prescribing the grounds of demurrer requires such a writing, or a copy thereof, to be incorporated with, or attached to, the pleading; § 2648, subd. 6. See supra, § 433, note.

of them: "No variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled [shall actually mislead] the adverse party to his prejudice in maintaining his action or defence upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended upon such terms as shall be just."1 "When the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs." 2 "Where, however, the allegation of the cause of action or defence to which the proof is directed is unproved, not in some particular or particulars, but in its entire scope and meaning, it shall not be deemed a case of variance within the last two sections, but a failure of proof." & Any pleading may be amended once by the party filing or serving it, as a matter of course, and without costs, and without prejudice to proceedings already had: such amendment must be made within specified times, which differ in the various codes; but will not be permitted if it appear to be merely for purposes of delay. In addition to this privilege of voluntary amendment accorded to the parties, the court itself may, on motion, amend a pleading, or permit it to be amended, at any stage of the cause, before and in most of the States, after the judgment, on such terms as may be proper. This authority is conferred in very broad terms, with the limitation, however, that the cause of action or defence shall not be substantially changed. Finally, all the codes contain the

1 New York, § 169; Wisconsin, ch. 125, § 35; Ohio, § 131; Missouri, art. 8, § 1; Minnesota, § 105; Kansas, § 133; Nebraska, § 138; Iowa, § 2686; Indiana, § 94; California, § 469; Florida, § 119; Oregon, § 94; Dacotah, § 122; North Carolina, § 128; South Carolina, § 192.

2 New York, § 170; Wisconsin, ch. 125, § 36; Ohio, § 132; Missouri, art. 8, § 2; Minnesota, § 106; Kansas, § 134; Nebraska, § 139; Iowa, § 2687; Indiana, 95; California, § 470; Florida, § 120; Oregon, § 95; Dacota, § 123; North Carolina, § 129; South Carolina, § 193.

3 New York, § 171; Wisconsin, ch. 125, § 37; Minnesota, § 107; Ohio, § 133; Kansas, § 135; Nebraska, § 140, Iowa, § 2688; Indiana, § 96; California, § 471;

Florida, § 121; Oregon, § 96; Dacotah, § 124; North Carolina, § 130; South Carolina, § 194.

4 New York, § 172; Wisconsin, ch. 125, § 38; Ohio, § 134; Missouri, art. 8, § 7; Minnesota, § 108; Kansas, § 136; Nebraska, § 141; Indiana, § 97; Iowa, § 2647; California, § 472; Florida, § 122; Oregon, § 97; Dacotah, § 125; North Carolina, § 131; South Carolina, § 195. These provisions are substantially the same, except in respect to the time within which the amendment can be made: they all permit one such amendment by the party of his own pleading, as a matter of

course.

5 New York, § 173; Wisconsin, ch. 125, § 41; Ohio, § 137; Missouri, art. 8,

following most righteous provision, which, as appears by their reported decisions, is treated by the courts of some States as though it were a legislative command binding upon them: "The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect." 1

§ 436. In the important discussions based upon the foregoing statutory provisions, which will form the substance of the present chapter, the natural and scientific order of treatment would undoubtedly lead me first to develop the general and essential principles upon which the whole reformed theory of pleading is based, and afterwards to apply these principles in determining the rules that regulate the matter and form of the plaintiff's complaint or petition. Scientific method must, however, be sometimes abandoned from considerations of convenience and expediency; and such a course seems to be proper in this instance. In attempting to obtain a correct notion of the essential principles and doctrines of the new system, it will be necessary to fix the

§§ 3, 6; Minnesota, § 109; Nebraska, § 144; Kansas, § 139; Indiana, § 99 (with verbal changes); Iowa, § 2689; California, § 473; Florida, § 123; Oregon, § 99; Dacotah, § 126; North Carolina, § 132; South Carolina, § 196. The following is the clause as found in all the codes substantially, and exactly in most of them: The court may at any time "amend any pleading or proceeding by adding or striking out the name of any party; or by correcting a mistake in the name of any party, or a mistake in any other respect; or by inserting allegations material to the case; or, when the amendment does not substantially change the claim or defence, by conforming the pleading or proceeding to the facts proved."

1 New York, § 176; Wisconsin, ch. 125, § 44; Ohio, § 138; Missouri, art. 8, § 5; Minnesota, § 112; Nebraska, § 145; Kansas, § 140; Indiana, § 101; Iowa, § 2690; California, § 475; Florida, § 126; Oregon, § 104; North Carolina, § 135; South Carolina, § 199. The foregoing are all the general provisions relating to the plaintiff's pleading, or to the theory of pleading as a whole: those relating to the defendant's pleading, to the reply, and

to the joinder of causes of action, are given hereafter. In a few of the codes, especially in those of Iowa, Indiana, and Missouri, there are certain special clauses prescribing what may be proved under the answer of denial, and what must be pleaded as new matter, or referring to some mere points of detail: as these clauses are all embraced by implication in the more general provisions common to all the codes, and thus make no change in the law of the States where they are found, they are surplusage, and I have not quoted them. One special provision, however, prescribing a form of complaint or petition in certain cases, may properly be cited here. "In an action or defence founded upon an instrument for the payment of money only, it shall be sufficient for a party to give a copy of the instrument, and to state that there is due thereon to him from the adverse party a specified sum which he claims." New York, § 162; Ohio, § 122; Kansas, § 123; “in an action, counterclaim, or set-off, founded on an account, note, bill of exchange, or other instrument, for the unconditional payment of money only, it shall be sufficient," &c.

meaning of certain terms and phrases used in all the codes; and it so happens, from the course of judicial decisions involving the question, that these very terms and phrases can be most advantageously examined, and most easily interpreted, in connection with the particular subject of "The Joinder of Causes of Action." The entire discussion will, therefore, be rendered simpler, and useless repetition will be avoided, by adopting the arrangement thus suggested. In pursuing this plan, the subject-matter of the chapter will be separated into the following general divisions: (1) The joinder of different causes of action in one proceeding; (2) the essential principles which lie at the foundation of the reformed system of pleading; (3) the general doctrines and practical rules deduced from these principles, which determine and regulate both the external form and the substance of the plaintiff's complaint or petition.

SECTION SECOND.

JOINDER OF CAUSES OF ACTION.

§ 437. The discussion of this important subject will be separated into the following subdivisions: I. The statutory provisions found in the various State codes. II. The forms and modes in which a misjoinder may occur, and the manner in which it must be objected to and corrected. III. The legal import of the term “cause of action," and the case discussed in which only a single cause of action is stated, although several different remedies, or kinds of relief, are demanded. IV. The legal import of the term "transaction;" discussion of the case of "causes of action arising out of the same transaction, or transactions connected with the same subject of action." V. Instances in which the proper joinder of causes of action is connected with the proper joinder of defendants; discussion of the provision that all the causes of action must affect all of the parties. VI. Instances in which all the causes of action are against the single defendant, or against all the defendants alike; and the only question is, whether the case falls within any one of the several specified classes, except the first which embraces those arising out of the same transaction, &c. These subdivisions, I think, entirely exhaust the particular subject-matter to which this section is devoted.