to be waived by answering to the merits.2 Where the name of one of several defendants did not appear in the complaint when filed, or in the writ when issued, but was added before service, and he did not appear, and judgment was entered against him by default, the objection was held to be waived.3

1 Gardner v. McClure, 6 Minn. 250. The omission of the Christian names of the parties in pleadings renders them defective for uncertainty: Wiebbold v. Herman, 2 Mont. 603.

2 Nichols v. Dobbins, 2 Mont. 540. And see School District v. Griner, 8 Kan. 224; Nelson v. Highland, 13 Cal. 74.

3 Belkin v. Rhodes, 76 Mo. 643.

When the alle

2269. Uncertainty and indefiniteness. gations of a pleading are so indefinite and uncertain that the precise nature of the claim or defense is not apparent, the objection to the pleading must be by motion to make more definite.1 And the rule is, that where a party fails to avail himself of a motion to make a pleading more definite and certain, he will be considered as waiving the objection to the pleading on that ground. So, objection to a pleading for inconsistency is waived, unless taken advantage of by motion;3 or by demurrer under the California Code.*

1 Posey v. Green, 78 Ky. 162; Pugh v. White, 78 Ky. 210; Mills v. Rice, 3 Neb. 76; Farrar v. Triplett, 7 Neb. 237. And see 246, ante. A motion to make more definite and certain averments which in themselves may be treated as surplusage is properly denied: Davidson v. Seligman, 19 Jones & S. 47.

2 Kimball v. Darling, 32 Wis. 675; Quintard v. Newton, 5 Robt. 72; Madden v. Railway Co. 30 Minn. 453; Brooks v. Hanchett, 21 N. Y. Week. Dig. 267.

3 See Hewitt v. Brown, 21 Minn. 163; Dean v. Leonard, 9 Minn. 190; Am. Dock Co. v. Staley, 8 Jones & S. 539; Pavey v. Pavey, 30 Ohio St. 600; Trimble v. Doty, 16 Ohio St. 129; 17, ante.

4 Jamison v. King, 50 Cal. 132.

2 270. By pleading over. - If a party who has filed a demurrer to a pleading pleads thereto before his demurrer has been ruled upon, he thereby waives his demurrer, if the defect demurred to is one which can

be waived. As where the defendant answers prior to, and without a decision upon a demurrer previously fiiled by him to the complaint, he thereby waives his demurrer. Thus, where a complaint or petition which contains a good cause of action, except that it appears to be barred by the Statute of Limitations, is demurred to, and the defendant afterward, pending the demurrer, answers to the merits, and an issue of fact is joined thereon and trial had, the demurrer must be taken to have been waived.3 So, if a good defense is defectively stated in an answer, and a demurrer thereto on that ground is overruled, the party demurring, in order to avail himself of his exception taken to the ruling of the court thereon, must rest on his demurrer, and if he reply he thereby waives his exception; but this rule does not apply where the facts stated in the answer of themselves constitute no defense.5 By answering over after demurrer overruled, the demurrer is waived, and error cannot be assigned on overruling the demurrer.“ So, if a party amends his pleading on a judgment sustaining a demurrer thereto, he waives his right to call in question the action of the court in sustaining the demurrer. And generally, the effect of filing an amendment to a pleading after a demurrer has been interposed thereto is to submit to the demurrer. And where a defendant answers, setting up the same defense relied upon on demurrer, the demurrer having been overruled, the answer is held to be a waiver of the demurrer.9 But pleading over, after a demurrer overruled, is not a waiver of the objection that the court has not jurisdiction of the subject of the action;10 nor of the objection that the pleading does not state facts constituting a cause of action or defense." The right to object to an erroneous ruling on a motion to strike a pleading from the files, 12 or to strike out redun

dant and irrelevant matter,13 or to dismiss,1+ or to make more definite and certain, is waived by pleading over. 15 And the want of a proper subscription or verification is a mere irregularity, which is waived by pleading over.16

1

Gordon v. Culbertson, 51 Ind. 334; Morrison v. Fishel, 64 Ind. 177. And see ? 231, ante.

2 Moss v. Witness Printing Co. 64 Ind. 125; Calvin v. State, 12 Ohio St. 60.

3 Vose v. Woodford, 29 Ohio St. 245.

4 Farrar v. Triplett, 7 Neb. 237.

5 Farrar v. Triplett, 7 Neb. 237.

6 Freas v. Englebrecht, 3 Colo. 377; Stanbury v. Kerr, 6 Colo. 28; Richards v. Fanning, 5 Oreg. 356; Union Ins. Co. v. McGookey, 33 Ohio St. 555. And see 57, ante.

7 Hurd v. Smith, 5 Colo. 233; Perkins v. Davis, 2 Mont. 474.

8 District Township v. District Township, 44 Iowa, 512.

9 Meyer v. Binkleman, 5 Colo. 262.

10 People v. Railroad Co. 42 N. Y. 283.

11 Richards v. Fanning, 5 Oreg. 356; O'Donohue v. Hendrix, 13 Neb. 255; Bartges v. O'Neil, 13 Ohio St. 72.

12 Shuggart v. Pattee, 37 Iowa, 422; Baldwin v. Daugherty, 39 Iowa, 50; Harrell v. Tenant, 30 Ark. 684.

13 Savage v. Challiss, 4 Kan. 319.

14 Rea v. Flathers, 31 Iowa, 545.

15 Prindle v. Caruthers, 15 N. Y. 525.

16 State v. Chadwick, 10 Oreg. 423. And see 34, ante.

2271. In particular cases. —It is said to be a rule of pleading, without an exception, that an answer to the merits waives all defects of a formal or technical character in a complaint or petition which states a cause of action.1 So, an objection that may be raised by answer in the nature of a plea in abatement is waived by not being so raised.2 Thus, objection that an action was brought upon a guaranty of a mortgage without leave of the court, after an action to foreclose the mortgage, may be raised by answer in the nature of a plea in abatement, and not being so raised is waived. An objection to a complaint that it contained no reference to a bill of particulars thereto annexed is waived by

the defendant's failure to demur to the complaint.* Upon leave being denied to file an amended answer, the defendant filed a second answer, omitting the matter objected to in the first, and it was held that although it was error to reject the first answer, the defendant waived his right to object by filing the second.5 Objection to the form of an answer in not containing any prayer for the particular relief demanded by the defendant, even if that be a defect, is one which should be presented by a demurrer, and is waived by going to trial upon an issue of fact. An objection to the form of an answer, as that a denial is insufficient to raise an issue, must be taken before the trial. And after going to trial on the issue, it is too late for the plaintiff to object that a defense set up in the answer arose after suit brought. So, the objection that a counter-claim was not set up in the answer with sufficient distinctness cannot be raised for the first time on appeal, when evidence on the subject was given without objection at the trial. But objection to a counterclaim, that it is not, in law, available as such, is not waived or cured by a reply thereto.10 When a defendant treats an original and an amended complaint as one, by answering the allegations contained in both, he thereby waives the objection that the original is superseded by the amended pleading." An objection that the promise sued upon is joint, and that the plaintiff should have joined the other covenantees as parties, is waived by putting in an answer containing only a general denial.12

1 School District v. McIntie, 14 Neb. 46, 50; Waters v. Reuber, 16 Neb. 101; Sappington v. Railway Co. 14 Mo. App. 86. Objection of want of jurisdiction is not waived by an answer to the merits: Gray v. Ryle, 18 Jones & S. 198.

2 Krower v. Reynolds, 19 N. Y. Week. Dig. 383; Williams v. McGrade, 18 Minn. 88.

3 Krower v. Reynolds, 19 N. Y. Week. Dig. 383; McKernan v. Robinson, 84 N. Y. 105.

4 Lassiter v. Jackman, 88 Ind. 118.

5 Bowles v. Doble, 11 Oreg. 474.

6 Dawson v. Brown, 9 Hun, 461. See Riley v. Sexton, 32 Hun, 250; Edwards v. Woodruff, 90 N. Y. 400.

7 McGuinness v. Mayor etc. 13 N. Y. Week. Dig. 522; 26 Hun, 142. 8 Reimer v. Doerge, 61 How. Pr. 142.

9 Glen & Hall Manuf. Co. v. Hall, 61 N. Y. 226, 237; 19 Am. Rep. 278.

10 Smith v. Hall, 67 N. Y. 48; People v. Dennison, 84 N. Y. 272; 8 Abb. N. C. 129.

11 Kline v. Corey, 18 Hun, 524.

12 Warner v. Ross, 9 Abb. N. C. 385,

BOONE PLEAD. - 43.