stricken out as sham, judgment on it as frivolous may be moved for. But a demurrer, to be adjudged frivolous, must be not merely without adequate reason, but so clearly and plainly without foundation that the defect appears upon mere inspection, and indicates that its interposition was in bad faith.10 A counter-claim cannot be stricken out or disregarded as frivolous, but the remedy is by demurrer, or by a motion to make it more definite and certain." A pleading will be held to be frivolous where there is a decision in point adverse to its sufficiency.12

1 Howell v. Ferguson, 87 N. C. 113; Crucible Co. v. Steel Works, 57 Barb. 447; 9 Abb. Pr. N. S. 195; Kelly v. Barnett, 16 How. Pr. 135; Nichols v. Jones, 6 How. Pr. 355.

2 Youngs v. Kent, 46 N. Y. 672; Webb v. Van Zandt, 16 Abb. Pr. 190; Vilas Nat. Bank v. Moore, 14 N. Y. Week. Dig. 334; Griffin v. Todd, 48 How. Pr. 15; Morton v. Jackson, 2 Minn. 219; Cahoon v. Railroad Co. 10 Wis. 290; Oregonian Ry. Co. v. Oregon etc. Co. Cir. Ct. Oreg. 22 Fed. Rep. 245.

3 Thompson v. Griswold, 11 N. Y. Week. Dig. 111; 11 Reporter, 62. 4 Temple v. Murray, 6 How. Pr. 329; Thompson v. Erie Railway Co. 45 N. Y. 468; Munger v. Shannon, 61 N. Y. 251.

5 Metraz v. Pearsall, 5 Abb. N. C. 90; Stent v. Nat. Bank, 5 Abb. N. C. 88. And see Duncan v. Lawrence, 3 Bosw. 103; 6 Abb. Pr. 304; Richter v. McMurray, 15 Abb. Pr. 346.

6 Pratt Manuf. Co. v. Jordon Iron etc. Co. 19 N. Y. Week. Dig. 378; 33 Hun, 143. A demurrer to a reply which amounts to a general denial of a counter-claim is frivolous: Beggs v. Beggs, 50 Wis. 443.

7 Dole v. Burleigh, 1 Dakota, 227. And see Excelsior Sav. Bank v. Campbell, 48 How. Pr. 347; 2 Hun, 375; 62 N. Y. 637.

8 See 252, ante.

9 Kain v. Dickel, 46 How. Pr. 208. See Beal v. Union Paper Box Co. 4 Civ. Proc. R. 18.

10 Ferguson v. Troop, 16 Wis. 571; Cook v. Warren, 88 N. Y. 37; Robbins v. Palmer, 5 N. Y. Week. Dig. 537.

11 Cooper v. Howe, 16 Hun, 502; Fettrech v. McKay, 11 Abb. Pr. N. S. 453 47 N. Y. 426. Compare Dodson v. Nevitt, Sup. Ct. Mont. 6 West C. Rep. 83.

12 Swinburne v. Stockwell, 58 How. Pr. 312; Collins v. Suan, 7 Robt. 623; People v. McCumber, 27 Barb. 632; 15 How. Pr. 186; 18 N. Y. 315.

2255. Misnomer.-In common-law pleading, misnomer of either party could only be pleaded in abatement of the action;1 and the objection was waived by a

E

plea to the merits. And according to some of the decisions under the Codes, the proper remedy for a misnomer is by a plea in abatement. But an allega

tion of misnomer, for the purpose of abating the action, must be full enough to wholly exclude the right of the plaintiff to sue the defendant by the name used. Generally, however, matters of misnomer may, under the Code system, be corrected by amendment.5 And it is well settled that the objection for misnomer is waived by answering to the merits. And a misnomer of the defendant, a corporation, is waived by an appearance and filing an answer to the merits, and cannot be raised by an objection to the admission of evidence.' It was held in Ohio that where a corporation, whose name is composed of several words, is sued by a name in which a word in the corporate name is omitted, such omission or misnomer, unless pleaded in abatement, will be disregarded by the court. When sued by the wrong name, the defendant must disclose his true name in making objection to the misnomer, by plea in the nature of a plea in abatement, or otherwise. A defendant sued by a fictitious name is a party to the action from its commencement, and an amendment to the complaint by inserting the true name does not change the cause of action.10 The identity of the party is to be presumed from the identity of the name in an instrument, and averment of identity is not necessary. The addition of "junior" to a name is mere matter of description, and forms no part of the name; 12 nor is a middle letter between the Christian and surname any part of the name, and may be rejected as surplusage in pleadings."

1 Traver v. Eighth Av. R. R. Co. 4 Abb. Ct. App. 422; Trustees etc. v. Tryon, 1 Denio, 451; 3 Keyes, 497; Slocum v. McBride, 17 Ohio, 607. And see Baker v. Bessey, 73 Me. 472; State v. Knowlton, 70 Me. 200; Melvin v. Clark, 45 Ala. 285.

2 Bryans v. Taylor, Wright, 245; Hite v. Hunton, 20 Mo. 286. So it was waived by a default: First National Bank v. Jaggers, 31 Md. 38.

3 See Miller v. Stettiner, 22 How. Pr. 518; 7 Bosw. 692; Peden v. King, 30 Ind. 181; Sinton v. Steamboat etc. 46 Ind. 478.

4 Lyons v. Rafferty, 30 Minn. 526.

5 See Hite v. Hunton, 20 Mo. 286; Louisville etc. R. R. Co. v. Hell, 12 Bush, 131; Pape v. Capitol Bank, 20 Kan. 440; Dewey v. McLain, 7 Kan. 126; Jernigan v. Carter, 60 Ga. 131. A mere misnomer is a formal error, amendable before or at the trial, or afterwards: Barnes v. Perine, 9 Barb. 202; 15 Barb. 243; 12 N. Y. 18; Traver v. Railroad Co. 6 Abb. Pr. N. S. 46; White v. Miller, 7 Hun, 427; French v. Donohue, 30 Minn. 111; and will not be regarded on appeal: Bank v. McGee, 20 N. Y. 355.

6 French v. Donohue, 30 Minn. 111; Hite v. Hunton, 20 Mo. 286. 7 School District v. Griner, 8 Kan. 224.

8 State v. Bell Telephone Co. 36 Ohio St. 296.

9 Louisville etc. R. R. Co. v. Hall, 12 Bush, 131.

10 Farris v. Merritt, 63 Cal. 118. And see Baldwin v. Morgan, 50 Cal. 585; Campbell v. Ádams, 50 Cal. 205.

11 Douglass v. Dakin, 46 Cal. 49.

12 People v. Cook, 14 Barb. 350; 8 N. Y. 67; Allen v. State, 52 Inc. 486; Johnson v. Ellison, 4 Mon. B. 526; Coit v. Starkweather, 8 Conn. 293; Prentiss v. Blake, 34 Vt. 460.

13 Milk v. Christie, 1 Hill, 102; Phillips v. Evans, 64 Mo. 17; Choen v. State, 52 Ind. 347; Mead v. State, 26 Ohio St. 505.

? 256. Striking pleading from files - Generally. — The practice of making a motion to strike from the files subserve the purposes of a general demurrer is not approved by the courts.1 And where objections to a pleading are based, not on any irregularity connected with its filing, nor to any matter pertaining to its form merely, but on its alleged insufficiency in matter of substance, the objection ought to be taken by demurrer and not by motion to strike from the files. The provision for a demurrer to a pleading for insufficiency supersedes the practice of moving to strike from the files." And the sufficiency of a defense cannot be tried on a motion to strike out. The failure to sign and verify a complaint or petition is no ground for dismissing an action, and when these defects exist, a motion may be properly interposed to strike the pleading from the files, which will compel the filing of a new complaint properly verified.5 An answer so substantially defective as to create no issue in the case, may properly

be stricken out on motion.

And pleas which present

no matter of defense which could not be given in evidence under the general issue already pleaded may be stricken out. So, if a defendant is given leave to put in an amended answer, on condition that no matter be set up therein which will affect orders previously made in the cause, such amended answer will be stricken out if it is incompatible with the terms upon which the leave was granted. The defendant's motion to strike out the plaintiff's demand for a bili of particulars was held to be properly granted, in a case where the defendant's moving affidavit furnished fuli particulars of the only matter not admitted by the plaintiff.9 An answer or other pleading will not in general be struck from the files, provided such pleading is in decent and decorous language.10 And overruling a motion to strike out portions of a pleading is no ground for reversal even if erroneous, where the motion did not strike at any vital part of the pleading, and sustaining the motion could not have benefited the appellan:." So, after matter is stricken from a pleading, and all evidence admissible under the original pleading can still be introduced, the error, if any, in striking out such matter, is immaterial, and the order will be affirmed.12 If a motion to strike certain matter out of a pleading is sustained, it is the right of the adverse party to have such matter erased or an amended pleading filed, but if this is not insisted upon, it will be sufficient to treat the objectionable matter as stricken out,13 A pleading struck out in the court below will constitute no part of the record of the cause on appeal, unless it is made so by bill of exceptions or by an order of court.14 But on an application for judgment upon a pleading as frivolous, the frivolous pleading in such cases is not stricken out, but remains upon the record, and becomes a part of the judgmen: roll.16

1 Robinson v. Fitch, 26 Ohio St. 662. And see Wilson v. Marks, 18 Fla. 322

2 Finch v. Finch, 10 Ohio St. 501. And sec? 41, ante.

3 State v. Harper, 6 Ohio St. 607, 611. And see Gause v. Knapp, 1 McCrary, 75.

4 Walter v. Fowler, 85 N. Y. 621; McCammack v. McCammack, 86 Ind. 387.

5 Fritz v. Barnes, 6 Neb. 435. And see Conn v. Rhodes, 26 Ohio St. 644. Illegibility of a pleading is ground for a motion to strike from the files: Downer v. Staines, 4 Wis. 372; 5 Wis. 159.

6 Pratt Manuf. Co. v. Jordon etc. Co. 33 Hun, 143; Oregonian Ry. Co. v. Oregon Ry. etc. Co. Cir. Ct. Oreg. 22 Fed. Rep. 245.

7 Wheelock v. McGee, 1 New Mexico, 573; De Forrest v. Butler, $2 Iowa, 78.

8 Crump v. Thomas, 89 N. C. 241.

9 Perzel v. Shook, 18 Jones & S. 206.

10 Heath v. White, 3 Utah, 474. But where a pleading in its denial states that every allegation of the opposite party is corruptly false," it should be removed from the files until reformed: Mitchell v. Brown, 88 N. C. 156.

11 Holt v. Brown, 63 Iowa, 319.

12 Sloteman v. Mack, 61 Iowa, 575. And see De Forrest v. Butler, 62 Iowa, 78; Wheelock v. McGee, 1 New Mexico, 573.

13 King v. Bell, 13 Neb. 409.

14 Peck . Board etc. 87 Ind. 221; Dunn v. Tousey, 80 Ind. 288; Scotten v. Randolph, 96 Ind. 581.

15 See 253, ante.

16 Briggs v. Bergen. 23 N. Y. 162; Strong v. Sproul, 53 N. Y. 497.

? 257. Lost pleadings. — Pleadings are essential to form an issue, and without an issue it is error for the court to order a cause on to trial. Nor can pleadings be dispensed with by agreement,2 except in those cases provided for the submission of an agreed case without action. But where the parties proceeded to trial without pleadings, no objection being taken, and there was a verdict and judgment, such irregularity was held not to be sufficient ground for reversal of the judgment on error. If an original pleading be lost, or withheld by any person, the court may authorize a copy to be filed and used instead of the original. The place of the lost pleading can only be supplied by motion based upon affidavits showing what it contained, and by the service