CHAPTER XI. OF THE COMPLAINT OR PETITION-THE TITLE THE STATEMENT. Section 143. The Order of its Parts. 1. The Title, which contains the Name. 144. Of the Court and County. 145. Of the Names of the Parties, 146. The true Name should be given. 146b. The Idem Sonans and Variance. 147. Where the Name is unknown. 2. The Statement. 148. Scope of the present Inquiry-The introductory Words. 149. The Inducement and Gist. 150. What Classes of Facts are Matter of Inducement. 151. Fictitious Allegations. 152. 1. The Fictitious Promise. 153. 2. In treating a Tort as a Contract, how should the Facts be stated? 154. The Right to so treat it inferred from an Enlargement of the Remedy. 155. The Inquiry resumed. 156 3. The common Counts-When are they permitted? 157. The judicial View. 157a. Continued. 158. 4. As to pleading Matters according to their legal EffectContracts may be set out in haec Verba or according to their legal Effect. § 143. The Order of its Parts. The codes embodying the reformed procedure agree in regard to the general frame of the complaint or petition, and require that it shall contain (1) the title of the cause, with the name of the county in which the action is brought, and the names of parties plaintiff and defendant; (2) a statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition; and (3) a demand of relief to which the plaintiff sup poses himself entitled. The phraseology varies slightly in different states, but the order is the same. In New York, where the action may be brought in one county, to be tried in another, the title must specify the name of the court in which the action is brought, and the county which the plaintiff designates as the place of trial. In New York, North Carolina, South Carolina, Connecticut, Indiana, Wisconsin, Minnesota, California, Oregon, Nevada, and Colorado, the statutory name for the first pleading is complaint, while in the other code states it is called a petition. They are words of the same significance in pleading, the former being derived from the common-law system, in which the plaintiff "complains" of the defendant, while in equity the plaintiff is a petitioner. The statutes of Ohio, Kentucky, Iowa, Kansas, and Nebraska require that the names of the parties be followed by the word "petition." To the three parts of the complaint or petition, should be added (4) the oath which is required in most of the code states. 1. The Title, which contains the Name. 144. Of the Court and County. As has been seen, the title must show the court in which the aotion is brought-as, the Circuit Court, the District Court, the Supreme Court, or any court having original jurisdiction in the mat [This is the provision of the following Codes: Code Civ. Proc. N. Y. 481; Rev. St. Ohio, § 5060; Rev. St. Ind. § 338; Code Iowa, § 3852; Code Civ. Proc. Cal. § 426; Code Civ. Proc. Colo. § 49; Gen. St. Kan. par. 4170; Gen. St. Minn. c. 66, § 91; Rev. St. Mo. § 2039; Consol. St. Neb. § 4632; Rev. St. Wis. § 2646; Code N. C. § 233; Code Civ. Proc. S. C. § 163; Comp. Laws N. D. § 4907; Comp. Laws S. D. § 4907; Rev. St. Wyo. § 2447; Gen. St. Conn. § 872; Mansf. Dig. Ark. § 5026; Code Civ. Proc. Wash. § 188.] 2 [The following is the proper form of the title in all the jurisdictions: [State of [In some of the jurisdictions the title must be followed by the words, "Petition or complaint." This is true in Ohio, Kansas, Nebraska, and Ken ter; and it must also show the county in which the cause is triable,3 Except in New York, the county in which the action is brought is the one in which it is to be tried-that one only is designated; and in transitory actions, as will be hereafter seen, this is the only venue named in the pleadings.* § 145. Of the Names of the Parties. The full names of both plaintiffs and defendants should be given as plaintiffs and as defendants -not, as at common law and in equity, by describing them in the body of the pleading, but in the form of a title, to the cause, and they may be afterwards referred to, without naming them, as "the plaintiff" or "the defendant." In an action by or against a partnership, the full names of all the partners must be stated. Partners cannot, at common law, sue or be sued by their partnership names; but by statute in some of the states, as in Ohio, Iowa, etc., this is allowed, and, so far, tucky. If the title were laid in the supreme court, it would be the same as above, omitting the name of the county. [What would be the effect of an omission of the title? It has been held that it would be a fatal objection. Ward v. Stringham, 1 Code Rep. 118. But, if the venue and the parties should be properly named in the body of the petition or complaint, this defect might be cured, or if the same were properly given in the summons served with the petition or complaint. Ammerman v. Crosby, 26 Ind. 451; McLeran v. Morgan, 27 Ark. 148; Van Namee v. Pebble, 9 How. Pr. 198. An omission or defect in this particular should be taken advantage of by motion. Hotchkiss v. Croker, 15 How. Pr. 336; McLeran v. Morgan, 27 Ark. 148. The court may, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.] As to New York, see Merrill v. Grinnell, 10 How. Pr. 31; Hotchkiss v. Croker, 15 How. Pr. 336 4 Post. §§ 284, 296. In all actions the writ and declaration must set forth accurately the Christian and surname of each plaintiff and each defendant. Our present code of civil procedure seems to have made no change in that rule." Pollock v. Dunning, 54 Ind. 115; [Dale v. Thomas, 67 Ind. 570; Kellam v. Toms, 38 Wis. 601.] [Haskins v. Alcott, 13 Ohio St. 210. If the common-law rule as to partners has not been changed by statute, the partners should be named individually; partnerships are treated as corporations. Elsewhere their de mands are joint and personal, and must be enforced by them as individuals. The liabilities also of partners are personal liabilities, and they or their survivors are jointly liable, unless, as in Missouri, the statute severs the liability and authorizes an action against one or more of them. It is not absolutely necessary that the title describe the parties as partners and give the partnership name, provided the facts appear in the body of the complaint; but it is always best to do so. So, when one brings an action in a representative capacity, or sues another in that capacity, the title should show the relation. Thus, if John Doe, an administrator, wishes to recover a debt due his intestate from James Jackson, who is deceased, he should entitle the action as follows: "John Doe, as administrator of the estate of Henry Smith deceased, against Richard Roe, as executor of the will of James Jackson, deceased." The word "as" should not be omitted; it is necessary to show the relation between the parties and the estates represented, and that they are in court, not for themselves, but for their estates." "John Doe, administrator," etc., may be an indication as to which John Doe is meant if there is more than one, as a means of identification, to distinguish him from another who may be a guardian, or a merchant, or something else. The words of addition merely are called descriptio personae, and because he is an administrator, and so says, it will not follow that the action is on behalf of the estate unless the fact appears. The rule applies to all who sue in a representative character,s thus, "John Doe and Richard Roe, Partners, Doing Business under the Firm Name of Doe & Co., Plaintiffs, vs. John Smith and Henry Jones, Partners, Doing Business under the Firm Name of Smith & Co., Defendants." But, where the statute permits them to be sued in their firm name, then the following would be sufficient: "John Doe & Co., Plaintiffs, vs. Smith & Co., Defendants."] 7 Sheldon v. Hoy, 11 How. Pr. 11; Bennett v. Whitney, 94 N. Y. 302; [State v. Bartlett, 68 Mo. 581.] 8 [Public Officers. [The statutes of many of the states permit public officers to sue in their own name (but with their official title added), by virtue of their official char both in the title and statement, yet, if the word "as" be omitted, the plaintiff may claim in a representative capacity if the body of the pleading shows that he acts in the premises only in such capacity.10 In a suit by an infant, the title should be "A. B. plaintiff, by C. D. his guardian," etc., but a title defectively stated is not error, if the names appear correctly in the body of the pleading." And even if the title is omitted altogether, but the names of the parties are given in the statement, the pleading is not, hence, subject to a demurrer. Thus, the following, after giving the court and county, was held to be a substantial compliance with the statute: "Charles Crosby complains of John Ammerman, and says," 12 etc. It should not, however, be inferred that the requirement in respect to the title is a dead letter; a non-compliance, though not fatal if properly supplied, will subject the pleader to the costs and delay of a motion to correct his pleading. § 146. The true Name should be given. Even where a judgment has been obtained against a defendant by a wrong name, an action upon the judgment should be brought against him by his true name; but that there may be no variance between the title and the description of the judgment as pleaded and as given in the record, the identity of the parties should be acter. The statement of the petition, however, should contain proper averments of their official character. Paige v. Fazackerly, 36 Barb. 392. [Corporations. [A corporation should sue and be sued in its corporate name. At common law it was unnecessary to allege the corporate existence of the corporation (Dutch West India Co. v. Van Moses, 1 Strange, 612; Henriques v. Dutch West India Co., 2 Ld. Raym. 1532; Bank of Michigan v. Williams, 5 Wend. 478); but it was necessary to prove its corporate existence. Unless the common law has been changed, it is sufficient, under the Code, to allege simply the corporate name; as, "The Michigan Central Railroad Company," plaintiff or defendant.] Gould v. Glass, 19 Barb. 179 et seq. 10 Beers v. Shannon, 73 N. Y. 292; State v. Bartlett, 68 Mo. 581. 11 Hill v. Thacter, 3 How. Pr. 407. 12 Ammerman v. Crosby, 26 Ind. 451; and to the same effect is State v. Patton, 42 Mo. 530. |