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.

183

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." 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; Civ. Proc. Colo. § 60; Gen. St. Conn. § 880; 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.]

Comp. Laws S. D. § 4925; Code Hill's Code Wash. § 207; Rev. St.

given to make it definite and certain. In California,184 Colorado,185 and Nevada,186 "that the complaint is ambiguous, unintelligible, or uncertain," is made a seventh ground of demurrer, and in Kentucky 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). 186 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 substitutes "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; nor can it, for the first time,

. 189

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.

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

(653)

§ 426. In Respect to filing the Writing sued on.

The statute, as we have seen, specifically names the vices for which a demurrer or answer in abatement will lie, and also points out various defects to be remedied by motion. While a demurrer will lie for no other cause, a motion is not so limited, and may be said to be the reserved instrument for attacking almost all irregularities not thus named among the grounds of demurrer. The latter is only resorted to where the error appears upon the record, while a motion is not thus confined. Thus, in Indiana, the statute requires, when an instrument of writing is the basis of the action, that the original, or a copy, be filed with the complaint, and made part of the record. The omission to file it shows a defect in the record, and the pleading is, therefore, demurrable.191 In Missouri it is made necessary to file the original instrument, while it is not made part of the record. A demurrer, therefore, will not lie unless the pleading gives an excuse for not having filed it which is not good under the statute; 192 the remedy is by motion to dismiss because of the omission, or to require the party to comply with the statute and file the instrument.193 But, both in Indiana and Missouri, if the opposite party plead to the merits, and go to trial, the objection is waived.194

$427. Misnomer-The Remedy.

In common-law pleading, misnomer, whether of plaintiff or defendant, was pleadable in abatement, even when the mistake was in the name of a corporation plaintiff,195 and was no ground for setting aside the proceedings, or for arresting the judgment.198 The plea in abatement for this cause was abolished in England by the Pro.cedure Act of 3 and 4 William IV., chapter 42, section 11, and a sum

191 Westfall v. Stark, 24 Ind. 378; 192 Hook v. Murdoch, 38 Mo. 224;

Eigenman v. Backof, 56 Ind. 594.
Burdsal v. Davies, 58 Mo. 138.

193 Rothwell v. Morgan, 37 Mo. 107; Hannibal & St. J. R. Co. v. Knudson, 62 Mo. 569.

194 Burdsal v. Davies, supra; GALVIN v. WOOLEN, 66 Ind. 464. 195 1 Chit. Pl. 451; Gould, Pl. c. 5, §§ 69–84.

196 1 Chit. Pl. 248.

mary process for correcting the error substituted. In our Codes of Procedure, while a defect of parties and a want of capacity to sue are among the grounds of demurrer and of dilatory answers, misnomer is not named; nor can it be included in the objections which are named, unless the pleading should show that the written contract in suit was not in defendant's name, and there is no allegation that he executed it by the name which appears in the instru ment. In such case a demurrer would lie, because the pleading does not state facts sufficient to constitute a cause of action against the defendant.

The remedy for misnomer has not been often considered, and there is a want of harmony in the few cases which I find, although it is universally held that if the defendant pleads to the merits the objection is waived, unless an instrument in writing, offered in evidence, shows a variance. In a case in New York,197 a private banker had been in the habit of doing business in a corporate name, and had sued and obtained judgment in such name. The appellate court held that the objection could not have been taken by demurrer or answer, had the attempt to do so been made, and that, having gone to trial on the merits, the judgment was not erroneous. Judges Denio and Comstock give separate opinions, both agreeing in the result, and both treating it as a case of misnomer. Judge Denio thinks that, under section 173 of the Code, as then numbered, authorizing amendments, the court should, at any stage of proceedings, when attention was called to the defect, before or after judgment, have amended the complaint, without terms, by correcting the mistake in the name of the plaintiff; but that the failure to do so was not error, inasmuch as the court is required to disregard any error or defect which shall not affect the substantial rights of the adverse party. Judge Comstock agrees that the misnomer is an irregularity which could not be the subject of demurrer or answer, and that the objection was waived by taking issue on the merits. In an early case, the Supreme Court 198 held that an objection for misnomer of defendant could not be raised by demurrer or answer, but thought

197 Bank of Havana v. Magee, 20 N. Y. 355.

198 Elliott v. Hart, 7 How. Pr. 25; followed in Dole v. Manley, 11 How. Pr. 138; but disapproved in Miller v. Stettiner, 22 How. Pr. 518, and a plea in abatement considered the true remedy.