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of personal notice upon the opposite party of the intention to move, which notice must be sufficiently explicit to advise him of what is intended, as well as to enable him to controvert the affidavits submitted. And a lost pleading cannot be substituted by mere amendment, without affidavits or certificates as to the lost paper." Where a substitute for a lost pleading is allowed to be filed, and the original is afterwards found, it is error to overrule a motion to strike the substituted pleading from the files; conceding the two pleadings to be exactly alike, there is no reason why the record should be encumbered with both papers.9

8

1 Mason v. Embree, 5 Ohio, 277; Wilkinson v. Daniel, Wright, 368.

2 McBride v. Moore, Wright, 524; Hicks v. Marshall, 67 Ga. 713.

3 See Dickenson v. Dickey, 76 N. Y. 602; Wood v. Squires, 60 N. Y. 191; McKethan v. Roy, 71 N. C. 165, Newark etc. R. R. Co. v. Commissioners, 30 Ohio St. 120.

4 Hallem v. Jacks, 11 Ohio St. 692.

5 See N. Y. Code Civ. Proc. 726; Cal. Code Civ. Proc. & 1045; Kan. Code Civ. Proc. 132; Ohio Rev. Stats. 5084; Davis v. Wilson,

11 Kan. 74; Renouil v. Harris, 2 Sand. 642.

6 People v. Cazalis, 27 Cal. 522; McLeadon v. Jones, 8 Ala. 298. Compare Benedict v. Cozzens, 4 Cal. 381.

7 Newman v. Dodson, 61 Tex. 91.

8 Sweet v. Brown, 61 Iowa, 669.

9 Sweet v. Brown, 61 Iowa, 669.

? 258.

CHAPTER XII.

WAIVER OF OBJECTIONS.

In general.

259. To jurisdiction of court.

260. To filing of complaint.

261. To want of subscription or verification.

262. Want of capacity to sue.

263. Defect of parties.

? 264. Misjoinder of parties.

265. Misjoinder of actions.

? 266. Causes of action not separately stated and numbered.

267. Another action pending.

268. Omitting name.

269. Uncertainty and indefiniteness.

270. By pleading over.

271. In particular cases.

258. In general. — A verdict will many times aid a defective pleading,1 and pleadings which would be bad on demurrer are often held good after verdict.2 And it is held that not only mere defects of form, but faults affecting substantive facts, are often aided by a verdict.3 The rule is, that every reasonable intendment is to be made in favor of the pleadings and in aid of the verdict.* And parties may waive their objections to pleadings or lose all benefits therefrom, by not making them in the proper mode, or at the proper time.5 Thus, objection to new matter in a reply constituting it a departure is too late after verdict. So, objection to a complaint that it contained no reference to the account thereto annexed is cured by verdict. A complaint upon a promissory note was held good after verdict, although neither the note nor the indorsement to the plaintiff was set out. So, where the complaint was for the recovery of money paid by the plaintiff for the defendant, it was held that the failure to allege a request was supplied by the 'ver

dict.9 A misnomer in the plaintiff's name in the complaint and summons is cured by a verdict, and judgment rendered in the plaintiff's favor by his proper name.10 And if the answer alleges a fact necessary to the validity of a complaint, but omitted therefrom, the latter is sufficient after verdict.11 Generally speaking, a defendant by pleading to the merits waives objection to formal defects.12 But objections cannot be so waived as to deprive the court of the power, or release it from the duty of considering them.13

1 See 235, ante; Eshelman v. Snyder, 82 Ind. 498; Houghton v. Beck, 9 Oreg. 325; Smith v. Townsend, 21 W. Va. 486; Quick v. Miller, 103 Pa. St. 67; Edwards v. Railroad Co. 74 Mo. 117.

2 Parker v. Clayton, 72 Ind. 307; Lewis v. Bortsfield, 75 Ind. 390; Roberts v. Porter, 78 Ind. 130; Donellan v. Hardy, 57 Ind. 393.

3 Parker v. Clayton, 72 Ind. 307. And see Bliss v. Arnold, 8 Vt. 252; Chester Glass Co. v. Dewey, 16 Mass. 94; Bailey v. Clay, 4 Rand.

346.

4 Addington v. Allen, 11 Wend. 374; Morey v. Homan, 10 Vt. 565; Owen v. Schmidt, 14 Phila. 184; Parker v. Clayton, 72 Ind. 307.

5 Lassiter v. Jackman, 88 Ind. 120. Where a corporation in its complaint made no averment of its corporate existence, and no objection was made by answer or otherwise until after judgment, the defect was waived: Spence v. Ins. Co. 40 Ohio St. 517.

6 Beard v. Hand, 88 Ind. 183.

7 Lassiter v. Jackman, 88 Ind. 120.

8 Westfall v. Stark, 24 Ind. 377; Purdue v. Stevenson, 54 Ind. 161. 9 Wilson v. Kelly, 58 Ind. 586.

10 Kronski v. Mo. Pac. Railw. Co. 77 Mo. 362. See Waldrop v. Leonard, Sup. Ct. S. C. 19 Reporter, 797; 22 S. C. 309.

11 Turner . Corbett, 9 Oreg. 79; Warner v. Lockerby, 28 Minn. 23; · Rollins v. St. Paul Lumber Co. 21 Minn. 5.

12 Grove v. City of Kansas, 75 Mo. 672. And see Sappington v. Railway Co. 14 Mo. App. 86.

13 Bennett v. American Art Union, 5 Sand. 631.

-Where a defendant

? 259. To jurisdiction of court. makes an unqualified general appearance in an action, he cannot afterwards object to the jurisdiction of the court over the person.1 The rule of law is, that where a party voluntarily appears to the merits of any controversy, he thereby waives all irregularities which may have intervened in getting him into court.2 But a deBOONE PLEAD. - 42.

fendant, by demurring solely on the ground that the court has no jurisdiction of the person, and by putting in a qualified appearance for that purpose alone, does not confer jurisdiction. And a voluntary appearance does not waive the defendant's time to plead, but only informality of process and service. But where the defendant, by his demurrer to the jurisdiction, raises questions non-jurisdictional and involving the merits, he thereby submits himself and his rights to the jurisdiction of the court, and can no longer be heard to say that it had no jurisdiction. Objection that the court has not jurisdiction of the subject of the action is not, however, waived by pleading over. Submitting to answer after judgment on the demurrer is not a waiver of the objection."

1 Palmer v. Phoenix Life Ins. Co. 10 N. Y. Week. Dig. 179; 84 N. Y. 63; Olcott v. Maclean, 73 N. Y. 223. Although parties to an action may waive objection to the venue, they cannot, by consent, give jurisdiction to a court over the subject-matter: Leach v. Railroad Co. 65 N. C. 486.

2 Bury v. Conklin, 23 Kan. 460; Carver v. Shelly, 17 Kan. 472; Sprague Irwin, 27 How. Pr. 51; Hoag v. Lamont, 16 Abb. Pr. N. S. 91. And see Burling v. Freeman, 2 Hun, 461.

3 Allen v. Malcolm, 12 Abb. Pr. N. S. 335; Sullivan v. Frazee, 4 Robt. 616; Ogdensburgh etc. R. R. Co. v. Vt. etc. R. R. Co. 4 Hun, 712; 63 N. Y. 176; 16 Abb. Pr. N. S. 249.

4 Harker v. Fahie, 2 Oreg. 83.

5 Meixell v. Kirkpatrick, 29 Kan. 679; Burdette v. Corgan, 26 Kan. 102. Although the court has no jurisdiction of an action brought against a foreign corporation by a non-resident, to recover damages for a personal injury committed out of the State, yet the want of jurisdiction relating to the person, and not to the subject-matter, is waived by answering to the merits: Pease v. Delaware etc. R. R. Co. 10 Daly, 459. See Gibbs v. Queen Ins. Co. 63 N. Y. 114; McCormick v. R. R. Co. 49 N. Y. 303; Harriott v. Railroad Co. 2 Hilt. 262; Handy v. Etna Ins. Co. 37 Ohio St. 366.

6 People v. Central R. R. Co. 42 N. Y. 283. See Gray v. Ryle, 18 Jones & S. 198; 5 Civ. Proc. R. 387.

7 People v. Central R. R. Co. 42 N. Y. 283.

2260. To filing of complaint. — Although a complaint in an action under the Code ought regularly to be in writing, and filed at the commencement of the pleading, yet it is held that the complaint may be waived,

and judgment be confessed or entered by consent.? It is held that a judgment is not void because no complaint has been filed.3 And especially is this so where the defendant has waived the objection to the omission to file a complaint in writing, by answering the oral complaint of the plaintiff, by leave of the court.*

1 See 35, 256, ante.

2 Leach v. Railroad Co. 65 N. C. 486. And see Graham v. Railroad Co. 64 N. C. 631.

3 Leach v. Railroad Co. 65 N. C. 486.

4 Little v. McCarter, 89 N. C. 233.

2261. To want of subscription or verification. - Neither the subscription nor verification constitute any part of a pleading, and their omission can only be deemed an irregularity, which would justify the court in striking it out, on motion.1 It is a mere irregularity which is waived by pleading over or demurring.2 A party upon application in a proper case may be allowed to amend. by adding a verification. And if a party seeks to take advantage of defects in the verification of his adversary's pleading, he must act at once, or his delay will be construed as a waiver of such defects. The objection is not a proper one to be raised on the trial. And it is too late to object to want of verification for the first time in the court of review. But where the plaintiff filed his complaint properly verified, and the defendant filed his answer thereto without verification, it was held that the plaintiff should have had judgment, as for want of an answer," And where service of an answer to a verified complaint, consisting of a general denial only, was admitted by the plaintiff's attorney, and "verification thereof waived," it was held that the waiver of verification did not admit the sufficiency of the answer, or dispense with the necessity of a specific denial.8

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