14 order allowing a plaintiff to amend by striking out the name of a defendant as improperly joined, after a plea in abatement for such misjoinder is filed, but before it is called up, is not erroneous, no injury appearing to have resulted to any of the parties.13 In a proceeding for a mandate, where an amended complaint is filed in the name of the State, it is proper to amend the writ accordingly. An amendment to a complaint in an action of claim and delivery, by inserting an allegation of forcible taking, is within the power and discretion of the court, and is held to dispense with an allegation of a demand before suit.13 Error in refusing to allow a particular amendment to an answer, is held to be waived if the defendant is subsequently allowed to file a further answer.16 1 Brown v. Galena Min. Co. Sup. Ct. Kan. 4 Pacif. L. Rep. 1013; 32 Kan. 528. And see 228, ante. 2 Harrison v. Forsyth, 1 Jones & S. 269. 3 Smith v. Rathbun, 22 Hun, 150. 4 Smith v. Rathbun, 22 Hun, 150. 5 Conway v. Mayor etc. 8 Daly, 306. 6 Robertson v. Robertson, 9 Daly, 44. 7 Henderson v. Stetter, 31 Kan. 56. And see Stout v. Folger, 34 Iowa, 71; Ward v. Howard, 12 Ohio St. 158. 8 Crump v. Thomas, 89 N. C. 241. 9 Henderson v. Graham, 84 N. C. 496; Cogdell v. Exum, 69 N. C. 464. 10 Gill v. Young, 88 N. C. 58. 11 Smith v. Rathbun, 75 N. Y. 122. 12 Smith". Rathbun, 75 N. Y. 122, And see Marvin v. Marvin, 11 Abb. Pr. N. S. 97; Bennett v. Van Syckel, 18 N. Y. 481. 13 Beall v. Territory, 1 New Mexico, 507. 14 Morris v. State, 94 Ind. 565. 15 Simmons v. Lyons, 3 Jones & S. 554; 55 N. Y. 671. 16 Bowles v. Doble, 11 Oreg. 474; 5 West C. Rep. 671. CHAPTER XI. FORMAL DEFECTS-REMEDIES. 243. In general. 244. Nature and extent of remedy by motion. 2245. Motion must point out deficiency. 246. Motion to make definite and certain. 247. Instances of motion to make more definite sustained. 248. Motion to make more definite - when made. 249. Irrelevant matter-surplusage. 250. Redundant and scandalous matter. ? 251. Multifariousness, inconsistency, etc 252. Sham pleading-remedy. 253. Frivolous pleading-remedy. 254. When pleadings deemed frivolous. -a 2 243. In general. — At common law, defects apparent upon the face of a pleading were met by a demurrer. general demurrer going to defects of substance, and a special demurrer to defects of form. A demurrer under the Code system is not according to the common law, either a general or special demurrer, but one whose powers and sufficiencies are governed entirely by the Code of the particular State. As already seen in preceding chapters,3 no pleading is now demurrable unless it is subject to one or more of the objections specified in the statute, as grounds of demurrer. These grounds embrace defects of substance, but many defects in form which could formerly have been reached by special demurrer, are now remedied by motion.5 Generally speaking, if a pleading is correct in substance, but not in form, the remedy is by motion, and not by demurrer, under the Code system. 1 See 1 Chit. Plead. 694; Thomson v. O'Sullivan, 6 Allen, 303; Beatty v. Rundall, 5 Allen, 441; Fairfield v. Burt, 11 Pick. 244; Snyder v. Croy, 2 Johns. 428; Andrews v. Thayer, 40 Conn. 156. 2 Renton v. St. Louis, 1 Wash. 215; 3 Chaps. 3, 7, ante. 54, ante. 441, ante; Marie v. Garrison, 83 N. Y. 14. 5 See Renton v. St. Louis, 1 Wash. 215; Hampson v. Fall, 64 Ind. 382; Union Bank v. Bell, 14 Ohio St. 200 ; & 54, ante. 6 Howell v. Frazer, 6 How. Pr. 221; 1 Code R. 270; Marie v. Garrison, 83 N. Y. 14. 244. Nature and extent of remedy by motion. — An application for an order is a motion. Or, as more fully defined, a motion is an application for an order addressed to a court or judge, by a party to a suit or proceeding, or one interested therein. And defects in pleading, as it respects the form and order of stating facts under the Code system, are to be settled on motion. The Codes substantially provide, that when the allegations of a pleading are so indefinite and uncertain that the precise meaning or application thereof is not apparent, the court may require the pleading to be made definite and certain by amendment. Under this provision, the sufficiency of pleadings as to certainty, precision, definiteness, consistency of allegation, and to every other variety of defect of allegation, which does not amount to such an absolute omission of fact as to constitute no ground of action or defense, must be taken advantage of, or objected to, by motion.5 It is further provided, that irrelevant, redundant, or scandalous matter, contained in a pleading, may be striken out, upon the motion of a person aggrieved thereby; 6 and obscene words may be stricken from a pleading on the motion of a party, or by the court of its own motion." But if there be a semblance of a cause of action or defense set up in the pleading, its sufficiency cannot be determined on motion to strike out as redundant or irrelevant; the proper way to test the sufficiency of the pleading is by demurrer or by motion on the trial.9 So, a motion to strike out irrelevant or redundant allegations is addressed very much to the discretion of the court, and should be granted only where it is entirely clear that such matter is improper or irrelevant.10 The power is to be exercised with reluctance and caution." And while it is competent for a party to move to make the pleadings of his adversary more definite and certain, he is not bound so to do, and the burden may not be cast upon him by the fault of the pleader.12 The indefiniteness and uncertainty to be relieved on motion are only such as appear upon the face of the pleading; 13 and matter dehors the pleading will not be looked to.14 1 N. Y. Code Civ. Proc. 768; N. C. Code Civ. Proc. 345; Cal. Code Civ. Proc. 1003. And see Matter of Jetter, 78 N. Y. 601. 2 Ohio Rev. Stats. 5121. 3 Stickney ". Blair, 50 Barb. 341; Grannis v. Hooker, 29 Wis. 65; Johnston Harvester Co. v. Bartley, 94 Ind. 131. 4 See N. Y. Code Civ. Proc. 546; Ohio Rev. Stats. 5088; Wis. Rev. Stats. 2653; Dakota Code Civ. Proc. 129. 5 Trustees etc. v. Odlin, 8 Ohio St. 293; Lorillard v. Clyde, 86 N. Y. 384; Hale v. Omaha Nat. Bank. 4) N. Y. 626; Pacific Mail Steamship Co. v. Irwin, 4 Hun, 671; 67 Barb. 277; Gause v. Knapp, 1 McCrary, 75; Mills v. Rice, 3 Neb. 376. 6 See N. Y. Code Civ. Proc. Dakota Code Civ. Proc. 120. 7 Ohio Rev. Stats. 5087. 545; Cal. Code Civ. Proc. 453; 8 Eaton v. Burnett, 16 Jones & S. 548. 9 Walter v. Fowler, 85 N. Y. 621. And see Lee v. Black, 1 N. Y. Month. Law Bull. 17; Robbins v. Palmer, 5 N. Y. Week. Dig. 537. 10 Town of Essex v. Railroad Co. 8 Hun, 361; People v. Tweed, 63 N. Y. 201; Younger v. Duffie, 26 Hun. 442: Madden v. Railway Co. 30 Minn. 453; Cate v. Gilman, 41 Iowa, 530. Even a remote probability that allegations contained in a pleading may be pertinent upon the trial of the action by way of explanation, or as connected with the history of the subject-matter of the litigation, is sufficient to protect such allegations from being stricken out as irrelevant, on motion: Duprat v. Havemeyer, is N. Y. Week. Dig. 439. And the power to strike out can be properly exercised only in favor of a perSon aggrieved: Homan v. Byrne, 14 N. Y. Week. Dig. 175 11 Town of Essex v. Railroad Co. 8 Hun, 361; St. John v. Griffith, 1 Abb. Pr. 39. 12 Clark v. Dillon, 97 N. Y. 370. 13 Brown v. Railroad Co. 6 Abb. Pr. 237. BOONE PLEAD.-40. 14 Brown v. Railroad Co. 6 Abb. Pr. 237; Scofield v. Nat. Bank, 9 Neb. 316. A reference to ascertain facts is improper: Hopkins v. Hopkins, 28 Hun, 436. ? 245. Motion must point out deficiency.—A motion to correct a pleading, or to strike out matter therefrom, should set forth with a reasonable degree of certainty the particulars wherein the pleading is defective.1 Thus, if the motion is to make a pleading more definite and certain, the moving party should state in his motion wherein and in what particular the pleading is not sufficiently definite and certain.2 So, a motion to strike out parts of a pleading should indicate the parts to which objection is made in such a manner that they may be clearly ascertained.3 A motion to reform, on the general allegation that the pleadings are irrelevant or redundant, is not sufficient. The court cannot be required to examine the whole pleading and select the parts to be removed. And it is even held that a motion to strike out part of a pleading, described by reference to line and page, does not sufficiently specify the part referred to. And where a specification in a motion to strike out included some matters that ought not to be struck out, it was held that the whole motion should be denied.' 1 Gilmore v. Norton, 10 Kan. 491; O'Connor v. Koch, 56 Mo. 253; Bowman v. Sheldon, 5 Sand. 657. 2 Gilmore v. Norton, 10 Kan. 491; Kerr v. Reece, 27 Kan. 338. 3 Blake v. Eldred, 18 How. Pr. 240; Benedict v. Dake, 6 How. Pr. 352; Jackson v. Bowles, 67 Mo. 603; Bryant v. Bryant, 2 Robt. 612. 4 O'Connor v. Kock, 56 Mo. 253. 5 Blake v. Eldred, 18 How. Pr. 240. 6 Robinson v. Rice, 20 Mo. 229; Patterson v. Hollister, 32 Mo. 478. 2246. Motion to make more definite and certain. — Generally, under the Code system, if a pleading is sought to be made more definite, and certain, the remedy is by mo |