omitted case. But this provision must be understood everywhere. No court would deny one's right, or invent an original mode of proceeding for protecting it, because of an omission in the Code, so long as the common-law or equity practice furnished a remedy. Says an opinion in the Supreme Court of Missouri: "The Code is not sufficiently comprehensive to embrace every varied phase which a case may assume before reaching judicial determination, and, in consequence of this, resort must be frequently had to common-law methods of procedure, both in ordinary actions at law as well as in proceedings looking merely to equitable relief. Numerous decisions of this court exemplify this;" citing the cases. The opinion then goes on to hold that, "when one defendant seeks relief against a co-defendant, he should answer in the nature of a cross-petition, setting out the facts, and asking relief against such. co-defendant, and the same time will be given to answer the crossdemand as that made by the original petition." 147 147 Tucker v. St. Louis Life Ins. Co., 63 Mo. 588, per Sherwood, J. The opinion states that it is not the practice in Missouri to issue process on the cross-petition. If the equity practice in this respect was merely formal, the omission would be well enough, but a defendant is not supposed to be notified of any demand against him except that made in the petition, and if one is made by a co-defendant, notice of it should not be assumed unless actually given. [Generally, the Code provisions in reference to counter-claims will enable the defendant to obtain all affirmative relief as against the plaintiff; but he can only obtain affirmative relief as against a co-defendant or new party by cross-complaint. An entirely new matter cannot be brought in by a cross-complaint or petition. The cause of action set up in the cross-complaint must be one arising out of, or having reference to, the subject-matter of the original suit or action. The general rules of pleading apply to the statement of facts in a cross-complaint, and the defendants may demur or answer, etc. [Form of Cross-Complaint. [It is not necessary to designate the answer as a cross-complaint, but it may be done thus: [Title of Case. [1st. The defendant, for a cross-complaint, alleges that one E. F. is the real party in interest in the cause, and that C. D., in whose name the action is brought, has no interest whatever in any judgment which may be rendered in this case. [2d. That, etc. (here state all the facts upon which you rely for relief in the cross-complaint).] CHAPTER XIX. OF THE REPLY. Section 393. The Statutes-Their General Provisions. 394. New Assignment-At common Law-Under the Code. 395. The Reply to Defenses of Fraud, etc., in negotiable Paper. 396. Departure-Remedy. 397. Some general Considerations. § 393. The Statutes-Their General Provisions. 2 8 The Codes of the different states are not in harmony in regard to the necessity for a reply. In California, Nevada, Idaho, and Utah no reply is permitted,1 while Kentucky preserves the full array of the commonlaw cross-pleadings. In New York, Wisconsin, North Carolina, South Carolina, Arkansas," and Minnesota no reply is permitted except to a counter-claim or set-off, although, in answers of new matter, the court, on motion, may, except in Wisconsin, Arkansas, and Minnesota require a reply. In Ohio, Indiana,10 Missouri," Kansas,12 Nebraska, 13 and Oregon 14 a reply is required to all new matter in the answer, whether pleaded in avoidance or by way of counter-claim, while in Iowa 15 a counter-claim must be replied to, 1 Code Civ. Proc. Cal. 1876, § 422; [Gen. St. Nev. § 3060; Rev. St. Idaho, § 4162; Comp. Laws Utah, § 3217.] 2 Bullitt's Code Ky. §§ 98-101. 3 Code Proc. N. Y. § 153; Code Civ. Proc. N. Y. 1876, §§ 514-516. 4 Rev. St. Wis. 1871, c. 125, § 16; Rev. St. 1878, § 2661. Code Civ. Proc. N. C. § 105; Code 1883, § 248. Code Proc. S. C. § 176. Gantt's Dig. Ark. 1874, § 4579. Gen. St. Minn. c. 66, § 100. Code Civ. Proc. Ohio, § 101; Rev. St. 1880, § 5079. 10 Code Civ. Proc. Ind. § 67; Rev. St. 1881, § 357. 11 Wag. St. Mo. p. 1017, § 15; Rev. St. 1879, § 3524. and also, if the new matter of defense is to be met by new matter of avoidance, the plaintiff is required to plead it specially. In Connecticut' 16 a reply to new matter is necessary, the plaintiff cannot give new matter in evidence under denial and, by leave of court, further pleadings are permitted. In Texas a reply to new matter of defense is not required although it must be made to a counterclaim.17 When the object is the same the language of the different Codes varies but slightly. The general provision is that, when the answer contains new matter (or new matter constituting a counter-claim), the plaintiff may reply to such new matter, denying generally, or specifically, each allegation controverted by him (or any knowledge or information thereof sufficient to form a belief), and he may allege, in ordinary and concise language, and without repetition, any new matter, not inconsistent with the complaint or petition, constituting a defense (or answer at law) to such new matter.18 It is thus seen that in most of the states, a reply is required to all new matter,19 while in a few it is required to counter-claims only,20 unless upon motion the plaintiff shall be ordered to reply to new matter of defense. This order will not be made when the defendant may know with 16 Pr. Act 1879, § 4. 17 Rev. St. 1879, arts. 1196, 1197. 18 [Upon an examination of this general provision, it will be seen that a reply is generally a general or special answer by the plaintiff to the new matter of the answer of the defendant, and may be in the following form: [Title of Case. [The plaintiff, in reply to the answer of the defendant, denies each and every allegation therein contained. [E. F., Atty. for Pltf. [The reply may contain new matter not inconsistent with the petition, constituting a defense to such new matter of the answer. [Burden of Proof. [When new matter is set up in the answer, and denied by the reply, the burden of proof is on the defendant.] 19 [Rev. St. Ohio, § 5079; Rev. St. Ind. § 357; Kimberlin v. Carter, 49 Ind. 111; Ridenour v. Mayo, 29 Ohio St. 138; Hixon v. George, 18 Kan. 253. New matter which does not constitute a defense requires no reply. ron, 39 Kan. 736, 18 Pac. 894.] 20 [Code Iowa, § 2666; Clapp v. Cunningham, 50 Iowa, 307.] West v. Came reasonable certainty what the reply would be; it is not of course, but there are cases in which he may not know how his defense of new matter will be met-as, in a plea of the statute of limitations— and it would be unreasonable to require the defendant, upon the trial, to be prepared to meet all possible responses to such defenses.21 This emergency is well provided for in Iowa, as above, without motion, while in two or three states no provision is made on the subject. § 394. New Assignment-At common Law-Under the Code. In common-law pleadings it may be necessary for the plaintiff to restate his cause of action, which is called a new assignment. This is not strictly a replication, because it neither traverses nor confesses and avoids the facts stated in the answer.22 But the cause of action is sometimes so described, especially in trespass; the facts are pleaded in so general a manner that the defendant may not be advised as to what particular trespass, if there has been more than one, the declaration refers. He may then justify as to a trespass other than the one for which the plaintiff seeks redress. In such case, if the plaintiff joins issue upon the plea of justification, no evidence can be offered except upon this issue, and the trial is had upon a trespass not in his mind when the declaration was filed. To avoid this he is required to reassign-that is, restate his cause of action in a more particular manner, or show that the action was not for the trespass which is justified, but for another.23 Great particularity of statement is required by the Code, and the occasion will not so frequently arise. But in an action for a trespass, either to the person or to his close, the pleader, if there has been more than one trespass, can hardly distinguish them; the time is immaterial, and the same language would apply to either. For one, the defendant may justify: for the other, he may claim an accord and satisfaction; and, perhaps, another alleged trespass he may deny altogether. How is he to know of which the plaintiff com 21 Hubbell v. Fowler, 1 Abb. Pr. (N. S.) 1. 22 Chit. Pl. 624. 23 Chit. Pl. 624-627. plains? If he were to justify or plead accord and satisfaction, and go to trial upon an issue made upon such new matter, it would not be right to permit evidence of a trespass not referred to in the issue; and some remedy must exist analogous to the old one. If the doubt could be removed by more particularity in the petition, then the plaintiff might get leave to amend; but in actions for trespasses of the same nature, it may be impossible to distinguish between them without pleading evidence, or without negativing an intention to refer to this or that transaction, which is not good pleading. In such case the remedy cannot be by amendment; neither can it be by a reply as defined by the statute, because it expressly provides that the reply shall either be a denial or a statement of new matter constituting a defense or answer at law to the new matter of the answer. A new assignment may confess and evade, but it does not avoid. May not the statute which authorizes the plaintiff to file a supplemental petition, be so interpreted as to authorize a substantial new assignment? The matter to be set out would not be strictly new facts arising since the commencement of the new suit; nor does the statute say that the supplemental petition shall be confined to such new facts. Why may it not be extended beyond the supplemental petition in equity, and pleas puis darrein continuance at law, and be made to meet any emergency not otherwise provided for, when a new statement becomes necessary? Or, perhaps, courts will treat the matter as a case not provided for by the Code, and allow the old remedy to supply the deficiency." I find but one reported case arising under the Code,25 in that the court conformed to the common 24 See ante, § 390. 25 CAMPBELL v. BANNISTER, 79 Ky. 205. I have been gratified by the position thus taken since the first edition of this work, as furnishing authority for what otherwise might depend on private opinion. [In this case, Cofer said: "A new assignment is not, properly speaking, a replication, since it does not profess to reply to anything contained in the defendant's answer, but throws aside as useless the previous pleading, or rather restates, in a more minute and circumstantial manner, the cause of action alleged in the petition which the defendant, through mistake or design, has omitted to answer. It is, therefore, in the nature of a new petition, or rather it is a more precise and particular repetition of the matter contained in the original petition, so as to indicate that the plaintiff is suing for a matter other than that to which the answer relates. Chit. Pl. 653.] |