appear to have been simply imperfect or incomplete. It is undoubtedly difficult to discriminate between these two conditions of partial and of total failure; and it is utterly impossible to frame any accurate general formula which shall define or describe the insufficiency, incompleteness, or imperfectness of averment intended by the codes, and shall embrace all the possible instances within its terms. By a comparison of the decided cases, some notion, however, may be obtained of the distinction, recognized if not definitely established by the courts, between the absolute deficiency which renders a pleading bad on demurrer or at the trial, and the incompleteness or imperfection of allegation which exposes it to amendment by motion; and in this manner alone can any light be thrown upon the nature of the insufficiency which is the subject of the present inquiry. $549. The true doctrine to be gathered from all the cases is, that if the substantial facts which constitute a cause of action are stated in a complaint or petition, or can be inferred by reasonaable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete, and - defective, such insufficiency pertaining, however, to the form rather than to the substance, the proper mode of correction is not by demurrer, nor by excluding 'evidence at the trial, but by a motion before the trial to make the averments more definite and certain by amendment. From the citations in the foot-note, it is 1 People v. Ryder, 12 N. Y. 433; Prindle v. Caruthers, 15 N. Y. 425; Flanders r. McVickar, 7 Wisc. 372, 377; Robson v. Comstock, 8 Wisc. 372, 374, 375; Kuehn v. Wilson, 13 Wisc. 104, 107, 108; Morse v. Gilman, 16 Wisc. 504, 507; Kimball v. Darling, 32 Wisc. 675, 684; Reeve v. Fraker, 32 Wisc. 243; Hazleton v. Union Bank, 32 Wisc. 34, 42, 43; Horn v. Ludington, 28 Wisc. 81, 83 (a motion made and granted, -a good illustration of defective allegations added to); Clay v. Edgerton, 19 Ohio St. 549; Winter v. Winter, 8 Nev. 129 (statement of a material fact by way of recital); Saulsbury v. Alexander, 50 Mo. 142, 144; Corpenny v. Sedalia, 57 Mo. 88 (a motion in arrest of judgment not proper when a cause of action is stated however defectively); Pomeroy v. Benton, 57 Mo. 531, 550; Hale v. Omaha Nat. Bank, 49 N. Y. 626, 630; Barthol v. Blakin, 34 Iowa, 452; Russell v. Mixer, 42 Cal. 475; Slattery v. Hall, 43 Cal. 191 (objection that a complaint is ambiguous cannot be raised under a general demurrer); Blasdel v. Williams, 9 Nev. 161; Smith v. Dennett, 15 Minn. 81; Lewis v. Edwards, 44 Ind. 333, 336; Snowden v. Wilas, 19 Ind. 10; Lane v. Miller, 27 Ind. 534; Johnson v. Robinson, 20 Minn. 189, 192; Mills v. Rice, 3 Neb. 76, 86, 87; Trustees v. Odlin, 8 Ohio St. 293, 296. A quotation from a few of these cases will show the exact position taken by the courts in reference to the extent of defect which can and must be cured by motion; and I select from among those which have discussed the subject in the most general manner. In Prindle v. Caruthers, 15 N. Y. 425, the complaint set out a copy of a written contract made by defendant, and reciting that, "for value received," he “promised to pay H. C. or E. C.," &c.; but it did clear that the courts have, with a considerable degree of unanimity, agreed upon this rule, and have in most instances applied it not, in any other manner, allege a consideration. It also stated that the contract is, and was prior to, &c, the property of the plaintiff by purchase," but did not disclose from whom the transfer was made, nor the consideration. The defendant demurring for want of sufficient facts, the court held that the copy of the contract as set forth contained a sufficient allegation of a consideration, and added: "The remedy for all defects of this nature is by motion to make the faulty pleading more definite and certain; that proceeding has taken the place of demurrers for want of form." Robson v. Comstock, 8 Wisc. 372, was an action for malicious prosecution. The complaint merely alleged that the defendant, maliciously and without probable cause, procured the plaintiff to be arrested and to be imprisoned, to his damage, &c., but did not state the nature of the indictment, nor in what the charge consisted, nor even that it was false, nor that there had been a trial, nor that the plaintiff had been discharged or acquitted. The defendant answered by a general denial; and, at the trial, the plaintiff had a verdict. On appeal from the judgment, the court, by Cole J., held (pp. 374, 375) that the complaint was exceedingly defective and informal in its manner of setting out the cause of action; but it was cured by the verdict. The plaintiff must have proved a discharge or acquittal, or else he could not have obtained a verdict. The code requires a liberal construction; and the defendant should have moved that the pleading be made definite and certain by supplying the omitted averments. In Morse v. Gilman, 16 Wisc. 504, the complaint alleged that defend ant entered into a written contract with one Merrick for grading at a specified price per cubic yard; that the work had been completed by M. according to the agreement; that there was due thereon a certain named sum; and, that the demand had been assigned by M. to the plaintiff; but it did not to any further extent state the provisions of the contract. At the trial, all evidence on the part of the plaintiff was excluded, and the complaint was dismissed. In reversing this ruling, the court, by Dixon C. J., said (p. 507): "That the contract between M. and the defendant is not set out, as it undoubtedly should have been, is not an objection which can be taken in this way. The remedy of the defendant for this defect is by motion to require the complaint to be made more definite and certain by amendment. A complaint to be overthrown by demurrer, or by objection to evidence, must be wholly insufficient. If any portion of it, or to any extent it presents facts sufficient to constitute a cause of action, or if a good cause of action can be gathered from it, it will stand, however inartificially these facts may be presented, or however defective, uncertain, or redundant may be the mode of their treatment. Contrary to the common-law rule, every reasonable intendment and presumption is to be made in favor of the pleading; and it will not be set aside on demurrer unless it be so fatally defective, that, taking all the facts to be admitted, the court can say they furnish no cause of action whatever;" citing and approving Cudlipp v. Whipple, 4 Duer, 610; Graham v. Camman, 5 Duer, 697; Broderick v. Poillon, 2 E. D. Smith, 554. In Saulsbury v. Alexander, 50 Mo. 142, the petition was, "Plaintiff states that defendant owes him, &c., for work done and cash lent, the particulars of which appear from the following account," &c., and concluding with a statement of the balance due, and a prayer for judgment. The defendant, making no objection to this pleading, answered, setting up only that the work had been negligently done, and that he had already paid more than its value. The plaintiff recovering at the trial, the defendant moved in arrest of judgment, on the ground that no cause of action was averred. This motion having been granted by the court below, the plaintiff appealed. The opinion of the Appellate Court, by Bliss J., proceeds as follows: "The petition is informal and defective, and there are some cases which seem to warrant the view taken by the court; to defects and mistakes having the same general features, and have sometimes severely strained the doctrine of liberal construction in order to enforce it. Thus, if instead of alleging the issuable facts the pleader should state the evidence of such facts, or even a portion only thereof, unless the omission was so exten but the tendency of our more recent decisions is to require all objections of form to be taken before the parties proceed to trial." After admitting that the cause of action was imperfectly stated, but that the main fact of the plaintiff's work, &c., for the defendant was admitted by the answer, which took issue merely upon the character of the labor, the opinion goes on: Now, it is altogether unconscionable to permit him to arrest the judgment, because the charge which he admitted in full is defectively laid. When we say that a judgment should be arrested if the petition fails to show a cause of action, we speak of substantial, and not of formal, omissions. The latter are supplied by intendment, and will be presumed, after verdict, to have been proved. But when the petition shows that the plaintiff has no cause of action, then the verdict should be treated as a nullity. But if the defects are merely of omission, and if, when supplied, a complete case would be made, the omission being of facts which the jury must have found, then the judgment is a legitimate sentence of the law." In the recent case of Pomeroy v. Benton, 57 Mo. 531, 550, Sherwood J. declares the rule to be, that if the petition, however inartificially drawn, do but state a cause of action, and no objections are taken to its formal character, by demurrer or answer, or by motion to correct, then all objections are waived; and he very pertinently adds that "it seems often to be forgotten that we have a code in Missouri." The same doctrine was announced in Elfrank v. Seiler, 54 Mo. 134; Russell v. State Ins. Co., 55 Mo. 585; and Biddle v. Ramsey, 52 Mo. 153. The position taken by the court in these cases, and in Saulsbury v. Alexander, supra, is a wide departure from that maintained by some of the earlier decisions of the same court, which arrested judgments for the most trivial defects of the petition, equalling, if not, indeed, surpassing, the devotion to technicality shown by the English commonlaw tribunals. Blasdel v. Williams, 9 Nev. 161, was an action to quiet title under express provisions of the statute (code, § 256). The complaint alleged that the plaintiffs have the legal title, and are in possession; that the defendant claims an estate or interest in said land adverse to the plaintiffs' right; that defendant has no lawful interest or estate therein, or in any portion thereof, or valid claim or title thereto; with a prayer that defendant's claim might be adjudged void, and the plaintiffs' title quieted. The answer was a denial, no demurrer being interposed or motion made. This complaint being objected to, on appeal, the court held that the plaintiff's should have stated more than the mere general averments in respect to the defendant's adverse claim above quoted. They should disclose its nature, the estate which he asserts in the land, so as to show how it is prejudicial to the plaintiffs' interest, and must then negative these allegations. Nevertheless, the pleading as it stood was sufficient in the absence of a demurrer. The court said: "It is an attempt to state a cause of action, and is simply a defective statement of such cause, rather than an absolute lack thereof." This case is a very excellent illustration of the rule, and would have been perfect if the court had said that the pleading must stand in the absence of a motion to correct it, instead of "in the absence of a demurrer;" for the defect was exactly of the kind not reached by a demurrer. The court, in Mills v. Rice, 3 Neb. 76, 86, 87, said that when a petition is uncertain or indefinite in its allegations, when it attempts to set up a good cause of action, but the defect does not go to the length of omitting to state any cause of action, the defendant must move to correct; he cannot take advantage of it by demurrer. sive that no cause of action at all was indicated, or if he should aver conclusions of law, in place of fact, the resulting insufficiency and imperfection would pertain to the form rather than to the substance, and the mode of correction would be by a motion, and not by a demurrer. It is virtually impossible, however, to lay down a dividing-line, so that on the one side shall fall all the errors which are venial, and on the other all those which are fatal. While in most instances the courts have held that a motion is the only means of removing the defect, and therefore that a neglect to make a motion waives all objection without any reference to the stage of the cause, yet in some cases a considerable stress has been laid upon the effect of a verdict in curing the error.1 And in certain decisions the language of the judges tends to create an unnecessary confusion, and to incorporate an additional element of doubt into the rule, which is not at best, from its very nature, capable of absolute certainty. In the cases referred to the courts have declared that if the defendant omits to move to make the pleading more definite and certain, or to demur, but answers and goes to trial, the objection is waived. This form of expression is a plain departure from the rule as given above, and is self-contradictory. The very distinctive feature of the class of defects under consideration is, that they do not render a pleading demurrable, but only expose it to amendment by motion. A failure to demur is therefore entirely immaterial; it does not waive any thing, because the demurrer if resorted to would have accomplished nothing. Doubt and obscurity alone as to the true meaning and the exact force of the rule can arise from this careless use of language. § 550. It has even been held, that where a cause of action is so defectively set out that a demurrer for want of sufficient facts would have been sustained, but the adverse party answers 1 See Robson v. Comstock, 8 Wisc. 372, 374, 375; Hazleton v. Union Bank, 32 Wisc. 34, 42, 43; Clay v. Edgerton, 19 Ohio St. 549; Saulsbury v. Alexander, 50 Mo. 142, 144; Corpenny v. Sedalia, 57 Mo. 88; Pomeroy v. Benton, 57 Mo. 531, 550; Blasdel v. Williams, 9 Nev. 161; Smith v. Dennett, 15 Minn. 81. In Missouri, and in a few other States, a motion in arrest of judgment is permitted by the practice under some circumstances, and the above cases, cited from that State, hold that such a motion is not proper when the petition is simply defective and imperfect in its statement of the cause of action, and should only be made when it wholly fails to set forth any cause of action; the mere imperfection is cured by the verdict. 2 Pomeroy v. Benton, 57 Mo. 531, 550; Blasdel v. Williams, 9 Nev. 161; Smith v. Dennett, 15 Minn. 81; Johnson v. Robinson, 20 Minn. 189, 192. instead, and goes to trial, the objection to the pleading is thereby waived, and evidence in its support must be admitted. Other cases are directly opposed to this position, and expressly declare that if the complaint or petition fails to state any cause of action the objection is not waived, and all evidence should be excluded at the trial, even though the defendant has answered; and this ruling is in exact conformity with the provisions of all the codes regulating the use of demurrers.2 The doctrine first stated is clearly erroneous, and the dicta or decisions which sustain it ought to be wholly disregarded; it violates the section of the codes which enacts that the absence of sufficient facts as a ground of demurrer is not abandoned by an omission to demur; and it utterly ignores the established distinction between a failure to state any cause of action and the statement of a cause of action in an imperfect and defective manner. It is only when the answer itself by some of its averments supplies the omission in a complaint or petition otherwise demurrable that the fault is cured and the objection waived by answering; mere answering instead of demurring cannot produce that effect. If the averments are so defective, if the omission of material facts is so great, that, even under the rule of a liberal construction, no cause of action is stated, it is not a mere case of insufficiency, but one of complete failure; and the complaint or petition should be dismissed at the trial, or a judgment rendered upon it should be reversed. A few examples are placed in the foot-note. While the general doctrine before stated, as to the nature of insufficient and defective averments, has been universally approved in the abstract, it has sometimes been departed from, and pleadings 1 Treadway v. Wilder, 8 Nev. 91. 2 Garner v. McCullough, 48 Mo. 318; Scofield v. Whitelegge, 49 N. Y. 259, 261, 262; Saulsbury v. Alexander, 50 Mo. 142, 144. & Scofield v. Whitelegge, 49 N. Y. 259, 261, 262; Bate v. Graham, 11 N. Y. 237; Louisville Canal Co. v. Murphy, 9 Bush, 522, 529. 4 Antisdel v. Chicago and N. W. R. R., 26 Wisc. 145, 147; Tomlinson v. Monroe, 41 Cal. 94 (an ambiguous and unintelligible complaint); Holmes v. Williams, 16 Minn. 164, 168. The case described in the text is that of a cause of action, good if properly pleaded, which the plaintiff intended and attempted to set out, but which he failed to set out by reason of omissions and defects in the material allegations; and it is to be distinguished from a cause of action entirely bad in law, no matter how complete and perfect may be the averments by which it is stated. In the first case a pure question of pleading is involved, and the complaint or petition is demurrable because the rules of pleading have been essentially vio lated; in the second case a pure question of law is involved, and the complaint or petition is demurrable, although the rules of pleading have been in every respect complied with. |