Supplemental pleadings, like most amendments, can be filed only on leave of court; but, in a proper case, the liberty to file them is a right, the discretion of the court, so called, is a judicial, not an arbitrary one, the leave is not discretionary, in the ordinary sense, unless from neglect, or other cause, the party can not claim it as a right, and it is error to refuse it when it should have been granted. Says Folger, J.,248 in holding the New York Code to be, in this regard, but a codification of the former law: "The power of the court, to which a motion is made for leave to put in a supplemental answer, is no more, nor is it any less now than it was before the present Code. It has a discretion to prevent or to refuse a supplemental pleading, but that discretion must be exercised reasonably, not capriciously or wilfully." 244 The supplemental petition must be consistent with and in aid of the original petition. In ejectment the plaintiff must still rely upon the title originally set out; he cannot, by supplemental petition, rely upon one since acquired.245 In an action to enforce a lien neither a supplemental pleading nor an amendment is necessary to recover notes falling due after filing the original petition, where the instrument creating the lien and the petition show that it was given to secure those due and to become the court some event which has happened subsequently to the commencement of the suit. The plaintiff does not thereby withdraw any allegation in his original petition not inconsistent with the averments in the supplemental petition." Gibbon v. Daugherty, 10 Ohio St. 365. [The supplemental complaint or petition is not a substitute for the original, but simply sets out some fact or facts, material to the issue, which tend to show more conclusively the plaintiff's right to recover. It cannot set up a new cause of action; neither can it be used to cure an insufficient complaint or petition. The petition or complaint, answer, and reply may be supplemented, and the same rules apply to each.] 243 In Spears v. Mayor, 72 N. Y. 442. 244 The opinion cites Holyoke v. Adams, 59 N. Y. 233, in which inexcusable laches was given as a good reason for denying the application. 245 Moon v. Johnson, 14 S. C. 434. But if the defendant answers the supplemental complaint upon the merits without having demurred to it or objecting to its being filed, it becomes too late to object to the evidence which sustains it. Lowry v. Harris, 12 Minn. 255 (Gil. 166). due before final decree. But in an ordinary action to secure certain installments due upon a contract, if other installments fall due before the trial, the plaintiff will be permitted to file a supplemental complaint embracing the latter.247 § 433. Continued. While the New York Code and some others speak of newly discovered facts, as well as new facts, that authorize a supplemental complaint, there may not be the same necessity or propriety in resorting to it, instead of an amendment, as is found in equity pleadings. In the latter the bill, for the purpose of discovery, may properly contain evidential facts. The defendant may be required to answer as to new facts, or newly discovered facts, although but evidential and although they go only to sustain the original demand. But in such case, there would seem, under the Code, to be no ground for such a pleading; newly discovered facts are material issuable facts which go to the plaintiff's original right and new facts go to affirm or increase his demand. The latter will necessarily be brought in by a supplemental complaint, while it would seem that a newly discovered issuable fact would be more properly embraced in an amendment. In practice it will be found that supplemental answers are more common than supplemental complaints. In New York the permission to file a supplemental answer is express and it is held to be the same as a plea puis darreign continuance at common law, or a cross bill in equity in the nature of one.2 It is a matter of right whenever such pleas or bills were allowed, but if the defendant has been guilty of laches it is in the discretion of the court whether to allow it.249 248 246 Whiting v. Eichelberger, 16 Iowa, 422. The fact that in Iowa the distinction between law and equity is preserved does not weaken this authority as the proceeding would be everywhere of an equitable nature. 247 Fincke v. Rourke, 20 Hun, 264. Where, as in Missouri,2 250 express authority is given to allege facts by way of answer or reply which have occurred since the institution of the suit, the same ruling in effect would doubtless be had except only that the new matter would more naturally be brought upon the record by an amended pleading rather than by one technically supplemental. In such a case, if an answer be filed as a supplemental one it is so far held to be an amended pleading as to be an abandonment of facts not restated.251 CHAPTER XXI. DEFECTIVE PLEADING-HOW CURED. Section 435. The Basis of the Doctrine. 436. Defects that are Grounds of Demurrer. 437. Aider by the Pleading of the opposite Party. 440. Statutes in aid of defective Pleading. 441. The more specific enumeration of Defects cured. 442. Aider after Verdict, as held under the Codes. 435. The Basis of the Doctrine. Courts are established, and the law of procedure is adopted, to secure, and only to secure, the ends of justice. Parties are required. to state their grievances and defenses on paper, as a guide to inquiry, to avoid the uncertainty and confusion that would arise from verbal and loose statements, that it may be known when a controversy is decided, and to these ends they must state them with distinctness and particularity-with what the law calls certainty. When an action is instituted, or a defense presented, the opposite party may insist that the rules of statement, and other rules found necessary or expedient, shall be observed, and may subject his antagonist to the proper penalty for their non-observance. But matters of this kind should be settled before going to trial. It by no means follows that, because certain rules of procedure are calculated to secure the ends of justice, all proceedings should be treated as invalid in which they have not been followed. Their obligation upon one party is supposed to be imposed for the protection of the other, and if the latter does not seek such protection,-if, with their violation before his eyes, he proceeds in the cause as though they had been observed-it would be very trifling for courts to permit him afterwards to go back and stop or vacate the proceedings because of their non-observance. Hence the doctrine of aider-of waiving or curing defects. This doctrine cannot, of course, apply to defects which are radical in their character. A party, by not raising the objection, cannot give a court jurisdiction over matters where it is not given by law; nor will a judgment be rendered, or be allowed to stand, when the statement of the party does not show that he is entitled to it. Hence, the limitations upon the doctrine which confine it to formal defects. A defeated party, then, or one who, upon the trial would throw obstructions in the path of his adversary, should consider what questions are, or will be, still open to him, what omissions or deficiencies have been, or will be, cured, and what are so substantial as not to sustain a verdict, or what will render a judgment erroneous. In the progress of our inquiries, frequent allusions have been made to defects that have been cured and objections that have been waived, but the importance of the subject demands for it a distinct and fuller consideration. § 436. Defects that are Grounds of Demurrer. We have seen that certain defects in a petition or complaint will support a demurrer. In all the Code states, they are named in the statute, as defects which will authorize a demurrer, and it is also expressly provided that, if these defects do not appear upon the face of the pleading, the objection may be raised by answer. In immediate connection with this provision, the statute declares that, if the objection be not taken either by demurrer or by answer, the defendant shall be deemed to have waived the same, except [1] only the objection to the jurisdiction of the court over the subject of the action, and [2] the objection that the pleading does not state facts sufficient to constitute a cause of action. Those which can be raised by demurrer have been already considered;1 the statute is clear and unambiguous as to their waiver; it admits of no construction; and it would be quite superfluous, would only incumber the page, to refer to the numerous cases where it has been enforced, There may, however, be some doubt as to whether, in Iowa, the objection for want of jurisdiction over the subject of the action is, in fact, waived. The language of its statute is as follows: "Where 1 Ante, §§ 405-415. |