§ 424. Continued-Answers-Duplicity-Remedy.

Duplicity in answers is also a vice to be met by motion. The statute, while permitting several defenses and several counterclaims, requires them to be separately stated, and if a single statement contains one defense, followed by allegations that will constitute another, the latter should be stricken out; 174 and if the additional matter is not sufficient to constitute a defense, though the answer is not double, yet such matter is redundant, and should be rejected.175 So, if one improperly embody in one statement matter of defense with matter that constitutes a counter-claim, the remedy is by motion, and not by demurrer.176 It is always held to be bad pleading to state facts which amount to a denial merely, and when a defendant shall follow a denial by such a statement, the latter will be stricken out as redundant.1" 177

exists, the defendant cannot be regarded as aggrieved thereby.

Nor

is a court to be taxed with the labor and trouble of minutely inspecting a pleading upon summary motion of this kind, for the purpose of ascertaining whether averments are or are not irrelevant, unless in cases where it is absolutely incumbent upon the party to get rid of them, to enable him to frame a proper answer." This is quoted approvingly in Cate v. Gilman, 41 Iowa, 530, and the court refused to reverse a judgment in a case where the trial court had overruled a motion to strike out a paragraph containing evidential facts provable under the previous denial, and upon the ground that, although the additional paragraph was unnecessary, the plaintiff was not injured by it. This is a very good reason why the appellate court should not interfere-because judgments should never be reversed for errors below, unless the party complaining of them was or might have been injured by such errors; but it is believed that a trial court, upon proper motion, and when the pleading contains facts clearly irrelevant, or if relevant, when their statement is uncalled for, and the matter is redundant, will not, in general, hesitate to strike out such matter, without troubling itself with inquiries as to the interest the objector has in seeking a purification of the pleading.

174 Johnson v. Crawfordsville, F., K. & F. W. R. Co., 11 Ind. 280.

175 Booher v. Goldsborough, 44 Ind. 490.

176 Kinney v. Miller, 25 Mo. 576. The demurrer, says Richardson, J., would go to the whole answer or statement, while it cannot operate on that part of it which is intended as a counter-claim.

177 Sparks v. Heritage, 45 Ind. 66; Allen v. Randolph, 48 Ind. 496. Although a motion to strike out is the proper practice, it is not error to sustain

In respect to remedies for defects in pleading in this connection, and when considering whether an answer should be rejected for irrelevancy, Allen, J.,178 quotes, approvingly, the following language, used in another case: 179 "If an answer, otherwise good, is loaded with unnecessary and redundant matters, the plaintiff's counsel should move, under section 160,18 180 to have such matters expunged. If doubts are entertained as to the sufficiency in law of the answer, and the opinion of the court is desired, it must be obtained by demurrer. If, however, any defense is palpably insufficient, a motion for judgment on the ground of frivolousness is the proper course; and, if the matters of defense can be shown to be clearly false, a motion to strike out, as sham, will reach the end. These four modes will cure all defects in an answer." To this he adds: "This appears to me a reasonable construction of the Code, with, perhaps, this qualification: that if an answer alleges matter, either as a total or partial defense, palpably foreign, inapplicable, and impertinent to the cause of action, or frivolous, it might be stricken out as irrelevant. But the irrelevancy or frivolousness must be palpable and clear, and not require argument to establish it. If a question is to be presented for argument, and requiring consideration, it should be done by demurrer." Neither of the learned judges could have intended to include the important remedy for uncertainty, to be next considered.

I have spoken of the rule against pleading evidential or probative facts, and it applies as well to answers and special replies as to the petition. In an early case,181 Selden, J., in regard to an answer setting up fraud as a defense to a trespass, the pleader going into a minute history of the transactions between the parties in regard to the property, stated, at length, the view that has been universally taken. He spoke of the rules of pleading in the civil-law, and in the equity practice, in both of which evidence can be pleaded, showed

a demurrer to the special paragraphs, as the effect is the same. Ohio & M. R. Co. v. Hemberger, 43 Ind. 462; Chicago, C. & L. R. Co. v. West, 37 Ind. 211, and other Indiana cases.

178 Littlejohn v. Greeley, 13 Abb. Pr. 311.

179 By Barculo, J., in Nichols v. Jones, 6 How. Pr. 355.

180 Code Civ. Proc. 1876, §§ 545, 546.

181 Knowles v. Gee, 8 Barb. 300.

that under the Code neither is followed, but rather the spirit of the common-law system, and sustained a motion to strike out the mere evidential facts contained in the answer.

In obedience to the general requirement that a motion must be specific in its object and certain in its application, the improper matter in a pleading to be stricken out must be designated with certainty, either by recapitulating the words, or by giving the words at the beginning and at the close of the matter to be rejected.182

§ 425. Uncertainty-Statutory Provisions-Remedy.

The Codes of New York, Ohio, Indiana, Wisconsin, Missouri, South Carolina, North Carolina, Iowa, Kansas, Nebraska, Minnesota, Oregon [Arkansas, Kentucky, North Dakota, South Dakota, Colorado, Connecticut, Washington, and Wyoming] expressly provide for the reformation of indefinite or uncertain pleading.189 With slightly differing phraseology the prevailing one is as follows: After providing for striking out irrelevant and redundant matter, the section adds: "When the allegations or denials of a pleading are so indefinite or uncertain that the precise nature of the charge or denial is not apparent (and when they fail in any other respect to conform to the requirements of law.-Missouri) the court may require the pleading to be made definite and certain (and otherwise to conform to the law.-Missouri) by amendment." In Minnesota the clause authorizes the court to strike out the defective pleading, on motion, or to require it to be amended; but no authority is given elsewhere to strike it out until an opportunity has been

182 O'Connor v. Koch, 56 Mo. 253; Pearce v. McIntyre, 29 Mo. 423.

183 Code Civ. Proc. N. Y. § 546; Rev. St. Ohio, § 5088; Rev. St. Ind. § 376; Rev. St. Wis. § 2683; Gen. St. Mo. § 2057; Code Civ. Proc. S. C. § 181; Code N. C. § 261; Code Iowa 1888, § 3927; Gen. St. Kan. par. 4202; Gen. St. Minn. c. 66, § 107; Consol. St. Neb. § 4662; Code Or. § 85; [Mansf. Dig. Ark. § 5082; Civ. Code Ky. § 134; Comp. Laws N. D. § 4925; Comp. Laws S. D. § 4925; Code Civ. Proc. Colo. § 60; Gen. St. Conn. § 880; Hill's Code Wash. § 207; Rev. St. Wyo. § 2475. The remedy is by motion to make more clear and certain, and not by demurrer. Trustees of School Section 16 v. Odlin, 8 Ohio St. 293, 296; Valley Ry. Co. v. Lake Erie Iron Co., 46 Ohio St. 44, 18 N. E. 486.]

185

given to make it definite and certain. In California,184 Colorado,1 and Nevada,188 "that the complaint is ambiguous, unintelligible, or uncertain," is made a seventh ground of demurrer, and in Ken tucky and Arkansas I find no specific provision to meet such a fault.187

§ 425a. Uncertainty not Ground for Demurrer.

It should be borne in mind-and this will help to reconcile conflicting decisions and dicta-that a pleading may be so uncertain and indefinite as to be subject to correction on motion, and still be good on demurrer. The usual ground upon which the demurrer is based is that it does not state facts sufficient to constitute a cause of action, or defense, as the case may be; and, in passing upon the demurrer, the court will only inquire whether it can gather from the pleading the requisite facts, however loosely or defectively stated. To be subject to demurrer, it "must present defects so substantial in their nature, and so fatal in their character, as to authorize the court to say-taking all the facts to be admitted—that they furnish no cause of action whatever." 188 The objection, then,

184 Code Civ. Proc. Cal. 1876, § 430.

185 Code Civ. Proc. Colo. 1877, § 51 (Civ. Code Colo. 1887, § 55). 188 Comp. Laws Nev. 1873, § 1103.

187 Instead of the comprehensive provision as above given, and the provision immediately preceding, embracing irrelevant and redundant matter, both embraced in section 160 of the old Code, the new Code of New York sub stitutes "a scheme for a summary remedy, by exception, for faults of pleading, consisting of irrelevant, redundant, or scandalous matter, indefinite or uncertain allegations or denials, or any other defect, a remedy for which is not elsewhere expressly provided. They supersede Code of Procedure, § 160," continues the report explanatory of the new Code, "and, in connection with the provisions relating to demurrer, provide a certain and adequate remedy for any defect in pleading, the want of which has been a principal cause of much loose and uncertain pleading." The changes, however, pertain to the practice which is peculiar to New York, and still leave the ground of the objection for irrelevancy, redundancy, indefiniteness, and uncertainty the same as before.

188 Gridley, J., in Richards v. Edick, 17 Barb. 260. In the following cases a demurrer was overruled, the court holding that the alleged incompleteness in the allegations could only be remedied by motion to make the pleading more

to the pleading on account of this uncertainty and indefiniteness is said to be waived by demurrer-that is, it cannot be raised by a demurrer. Nor will the objector be permitted to raise the question upon the trial by objecting to the introduction of evidence; it is too late after having gone to trial; 189 nor can it, for the first time, be raised upon error.190

We have seen that when the pleading contains statements of evidential facts, those statements may ordinarily be stricken out as redundant. This is true when there is anything substantial leftwhen the pleading, after the redundant matter is so rejected, contains a sufficient statement to constitute a cause of action, or a defense of new matter, or a denial. But it may happen that no substantial pleading will be left. The statement, in such case, of evidential facts is not redundant, for without it the pleading falls; neither is it supposed to be frivolous, or irrelevant, or sham, for the facts pertain to the case, and are pleaded in good faith; the pleading, therefore, cannot be rejected. Neither, if this be the only fault, will a demurrer lie, for it is not a defect of substance; a cause of action, or a defense, or a traverse, is shown, though in an argumentative way. The only remedy, then, must be to move for an order to make the pleading more definite and certain—an efficient remedy for slovenly, ambiguous, and argumentative statements.

definite: Village of Warren v. Philips, 30 Barb. 646; Hale v. Omaha Bank, 49 N. Y. 626; Spies v. Accessory Transit Co., 5 Duer, 662; Olcott v. Carroll, 39 N. Y. 436; Marie v. Garrison, 83 N. Y. 14; Lewis v. Coulter, 10 Ohio St. 451; Stoutenburg v. Lybrand, 13 Ohio St. 228; Clay v. Edgerton, 19 Ohio St. 549; Snowden v. Wilas, 19 Ind. 10; Fultz v. Wycoff, 25 Ind. 321; Lewis v. Edwards, 44 Ind. 333; Prindle v. Caruthers, 15 N. Y. 425; Riemer v. Johnke, 37 Wis. 258; Mills v. Rice, 3 Neb. 76; Schrock v. Cleveland, 29 Ohio St. 499. See Poe v. Domec, 48 Mo. 441; Bostwick v. Van Voorhis, 91 N. Y. 353.

189 Kerr v. Hays, 35 N. Y. 331; Greenfield v. Massachusetts Mut. Life Ins. Co., 47 N. Y. 430; Ready v. Sommer, 37 Wis. 265.

180 Trustees of School Section 16 v. Odlin, 8 Ohio St. 293; Hewitt v. Brown, 21 Minn. 163.

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