ON THE LAW OF PLEADING AND PRACTICE UNDER THE PROCEDURAL CODES ADAPTED TO USE IN ALASKA, ARIZONA, CALIFORNIA, COLORADO, HAWAII, IDAHO, KANSAS, MONTANA, NEBRASKA, NEVADA, NEW MEXICO, NORTII DAKOTA, OKLAHOMA, OREGON, SOUTH DAKOTA, UTAH, WASHINGTON, AND WYOMING Le mester de counter.-Britt. c. 22. (The mystery or art of pleading.) BY JAMES M. KERR SAN FRANCISCO, CALIFORNIA Law Book Publishers and Sellers 1919 FOREWORD Some new features are introduced in the present treatise, departing in a marked manner from anything to be found in any other treatise on Code Pleading and Practice; and the fond hope is indulged that the profession may find Parts I and II of this treatise sufficient justification for its existence-being practically all new matter, designed to assure attorneys in Getting the right start in an action; for getting the right start, either in Law or in Life, is a very important matter, upon which fulcrums the success in the one or the career in the other. There is a great deal of sound philosophy in Davy Crockett's motto: "Be sure you are right, then go ahead"; and this homely aphorism should be the fundamental rule of all practitioners, in instituting an action or proceeding at law or in equity. Pythagoras's saying that "the beginning is half of the whole," or the same precept in popular parlance, to the effect that "well begun is half done," is peculiarly applicable to law-suits. On the other hand, in Shakespear's view, Things bad begun make strong themselves by ill.1 Every lawyer knows the general rules of pleading and practice, is assumed in the preparation of this treatise; it is the illustrations or applications, and the exceptions to the general rules the average lawyer wishes at hand for ready reference, and these it is sought to give as completely as is practical in a treatise of two volumes which seeks to cover the whole field. To illustrate: The chapter on Removal of Cause2 is a comprehensive and orderly résumé of decisions, not an attempt at an exhaustive treatment,-a sort of necessary "first aid," which will lead unerringly into the broader field of com1 Macbeth, Act. III, Scene ii, 1. 55. 2 §§ 437-582. plete discussion. This feature is entirely new in its scope and method of treatment, giving the various steps to be taken, and the grounds of removal, as they are set out in the Judicial Code, with some, but not all, of the pertinent decisions. 8 Assistfulness to Bench and Bar has been one of the main objects in the preparation of this treatise, within the field it essays to cover; and to this end it has been sought to so arrange the matter treated as to render the volumes most easily consulted, and serviceable as a working tool. The distinctive features will appear upon examination; but special attention may be directed, as illustrations of this method of treatment, to the chapter on Demurrers, in which, among other matters discussed, are treated the kinds of demurrers, what demurrer reaches, and when it lies,' testing the complaint by demurrer, and the like,-the nine grounds on which a defendant can demur to the complaint are arranged seriatim, with appropriate discussion and authorities under each ground of demurrer. In the chapters devoted to the Answer, 10 for instance, the Pleas that may be filed in a civil action are arranged and discussed in their alphabetic order,11 with a pretty full, if not exhaustive, collection of the "Special Pleas '12 which may be filed under the various classes of pleas, similarly arranged and discussed, with numerous pertinent and illustrative cases cited. Other parts of the treatise are prepared in the same methodical, orderly,—and it is hoped, assistful, manner. 9 Pasadena, Cal., July 15, 1919. 3 § 28, 5 Fed. Stats. Ann., 2nd ed., p. 16. 4 §§ 872-1032. §§ 886-889. * § 885. 7 §§ 883, 884. JAMES M. KERR. 8 §§ 890-910. 9 §§ 915-1022. 10 §§ 1038-1198. |