§ 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 irregu larities 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 Procedure 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. 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 107 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. that an old rule of court was in force authorizing the court, before appearance, to set aside the proceedings. In a more recent case in the Court of Appeals,199 a married woman had sued in her maiden name, and it was held that, after issue and trial upon the merits, the objection was waived. Grover, J., however, said that "the only mode of presenting such a defense (misnomer) is, under the Code, by answer." The Supreme Court of Indiana treats a misnomer, by the omission of, or mistake in, the plaintiff's christian name, as still pleadable in abatement,200 and in Ohio, an answer that the contract in suit was made with defendants as a corporation, that they were a body corporate, etc., was held to present a good defense,201 while an objection on the ground of mistake in the defendant's name is waived by pleading to the merits, and is available only by plea in abatement.202 It is thus seen that nothing seems to be settled upon authority, except that the objection for misnomer is waived by answering to the merits. § 427a. Can the Question be raised by Answer? Whether the objection for misnomer can be made by answer may be affected by another question, to wit: Are the dilatory answers named in the statute all of that nature that are now permitted? Misnomer is not named, and, if so, the question cannot be raised in this way. That a demurrer will not lie but for the defects named is universally conceded,203 and the same defects are named as grounds of objection by dilatory answer. It is claimed, on the one hand, that the intention was to specify all thus to be taken advantage of, either by demurrer or answer; all the dilatory issues which, if not apparent, should be submitted to a jury. Take, for example, mis 199 Traver v. Eighth Ave. R. Co., *42 N. Y. 497, 6 Abb. Pr. (N. S.) 46. 200 Peden v. King, 30 Ind. 181; Sinton v. The R. R. Roberts, 46 Ind. 476. 201 Ridenour v. Mayo, 29 Ohio St. 138. 202 State v. Bell, C. & W. U. Tel., 36 Ohio St. 296; citing common-law authorities. 203 In Indiana the statute expressly provides that a demurrer shall lie for no other cause, and the Ohio, Kansas, and Nebraska Codes, by using the word "only," in effect, do the same. nomer. At common law, upon issue joined, the jury passed upon the question, and judgment was entered accordingly. This mode of inquiry, with its grave consequences, has, as we have seen, been abolished in England, and upon one hypothesis, also, by the Code. The conclusion thus arrived at is, that the legislature intended to take from the jury the consideration of all defects except those named; that the correction of all others should be left to the court alone. Questions not involved in regular issues of law or of fact are brought before the trial court by motion, and that is claimed to be the proper mode of raising the objection for misnomer. The statute expressly provides for the correction of errors in the names of the parties in any stage of the proceedings, and an application for such correction would be a motion, and would, necessarily, like the plea in abatement, give the true name.204 On the other hand, the assumption that it was designed that the statute should include, in the provision referred to, all dilatory answers, and that none others are allowed, is claimed to be wholly gratuitous. Nothing is said except that certain objections, if they cannot be taken by demurrer, may be by answer. The subject of answers is not the one under consideration, and no intimation is given that other defenses of which the defendant may avail himself, and which do not go to the merits, may not also be made by answer. A defendant may be interested in the fact that the plaintiff is not the real party in interest. A chose in action may have been assigned, and so as to transfer the obligation to the assignee, and, if sued by the assignor, an answer setting up the assignment as a defense may be essential to his protection. This he may do,205 and yet the objec tion that the plaintiff is not the real party in interest-is not one of the grounds of demurrer. I infer, then, if a motion is entertained to correct the name of a party, it is not because no dilatory de 204 It should be noted that a defendant sued by a wrong name is not bound to appear; the court does not acquire jurisdiction, the judgment and execution is void; and, arguendo, the amendment cannot be made unless he waives the irregularity by appearing. Farnham v. Hildreth, 32 Barb. 277; Hoffman v. Fish, 18 Abb. Pr. 76; Gardner v. Kraft, 52 How. Pr. 499. These rulings must be conditioned upon a non-compliance with the statute in alleg. ing ignorance of the true name. 205 See ante, § 329, and cases cited in note. BLISS CODE PL.-42 (657) fense can be made by answer except those named in the statute, but because it may be considered a more suitable remedy. 4. Amendments. § 428. Amendments discretionary-Without Leave of Court-With Leave of Court. I refer not in this connection to formal amendments, the omission of which will not arrest or reverse a judgment-of those I shall speak in the next chapter-but of substantial changes in the pleadings which a party may find it necessary to make. Without referring specifically to the statutes of the different states, they all provide or imply a right to amend after a demurrer without leave of court, for the purpose of correcting the error which is the subject of the demurrer, and also permit an amendment without leave, before the filing of a responsive pleading by the opposite party. Ordinarily, however, amendments can only be made by leave of the court, and that implies a discretion 208 in granting or refusing the leave. This, however, is not an arbitrary discretion, it must be controlled by rules, and they do not differ in substance from those which were followed before the adoption of the new system. § 429. Limitations upon the Power of Amendment. It would be impossible to say when, to describe all the occasions in regard to which, amendments should be allowed; it is easier to indicate some cases where they are not allowable. The general language of the statute embodies—and, perhaps, makes a little more specific-the powers that had been before acted upon by the courts, and except when the decision was controlled by the mere forms of action, the old authorities may still be looked to for guidance.207 200 [The power of the court to allow amendments is not entirely discre tionary. It is generally reviewable, but only for the purpose of determining whether there has been an abuse of discretion. COOK v. CROISAN (Or.) 36 Pac. 532; Flanders v. Cottrell, 36 Wis. 564.] 207 Leetch v. Atlantic Mut. Ins. Co., 4 Daly, 518. |