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466. Time of filing. The plaintiff shall file his complaint in the clerk's office on or before the third day of the term to which the action is brought, otherwise the suit may, on motion, be dismissed at the cost of the plaintiff.

Code, ss. 206, 238; 1868-9, c. 76, s. 3; 1870-1, c. 42, s. 3.

467. Contents. The complaint shall contain

1. The title of the cause, specifying the name of the court in which the action is brought, the name of the county in which the trial is required to be had, and the names of the parties to the action, plaintiff and defendant.

2. A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition; and each material allegation shall be distinctly numbered.

3. A demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof must be stated.

Code, s. 233; C. C. P., s. 93.

468. In action to recover purchase money of land. In actions for the recovery of a debt contracted for the purchase of land, it shall be the duty of the plaintiff to set forth in his complaint that the consideration of the debt sued on was the purchase money of certain land, describing said land in an intelligible manner, such as the number of acres, how bounded, and where situated.

Code, s. 234; 1879, c. 217.

469. What causes of action may be joined. The plaintiff may unite in the same complaint several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, where they all arise out of—

1. The same transaction; or transaction connected with the same subject of action.

2. Contract, express or implied; or,

3. Injuries with or without force to person and property, or to either; or,

4. Injuries to character; or,

5. Claims to recover real property, with or without damages for the withholding thereof; and the rents and profits of the same; or, 6. Claims to recover personal property, with or without damages for the withholding thereof; or,

7. Claims against a trustee, by virtue of a contract, or by opera

tion of law.

But the causes of action so united must all belong to one of these classes, and except in actions for the foreclosure of mortgages, must

affect all the parties to the action, and not require different places of trial, and must be separately stated. In actions to foreclose mortgages, the court shall have power to adjudge and direct the payment by the mortgagor of any residue of the mortgage debt that may remain unsatisfied after a sale of the mortgaged premises, in cases in which the mortgagor shall be personally liable for the debt secured by such mortgage; and if the mortgage debt be secured by the covenant or obligation of any person other than the mortgagor, the plaintiff may make such person a party to the action, and the court may adjudge payment of the residue of such debt remaining unsatisfied after a sale of the mortgaged premises, against such other person, and may enforce such judgment as in other cases.

Code, s. 267; C. C. P., s. 126.

NOTE. Must show party in interest, see ss. 282, 400.

XIII.

DEFENDANT'S PLEADINGS.

470. Demurrer or answer. The only pleading on the part of the defendant is either a demurrer or an answer.

Code, s. 238; C. C. P., s. 94.

471. Demurrer and answer. The defendant may demur to one or more of several causes of action stated in the complaint, and answer to the residue.

Code, s. 246; C. C. P., s. 103.

472. Sham and irrelevant defenses. Sham and irrelevant answers and defenses may be stricken out on motion, and upon such terms as the court may in its discretion impose.

Code, s. 247; C. C. P., s. 104.

Note. See s. 560.

473. Time for. The defendant shall appear and demur or answer at the same term to which the summons shall be returnable, otherwise the plaintiff may have judgment by default.

Code, s. 207; 1870-1, c. 42, s. 4.

XIV. DEMURRER.

474. Grounds for. The defendant may demur to the complaint when it shall appear upon the face thereof, either

1. That the court has no jurisdiction of the person of the defendant, or of the subject of the action; or,

2. That the plaintiff has not legal capacity to sue; or,

3. That there is another action pending between the same parties for the same cause; or,

4. That there is a defect of parties plaintiff or defendant; or, 5. That several causes of action have been improperly united; or, 6. That the complaint does not state facts sufficient to constitute a cause of action.

Code, s. 239; C. C. P., s. 95.

475. Must specify grounds of objection. The demurrer shall distinctly specify the grounds of objection to the complaint. Unless it does so, it may be disregarded. It may be taken to the whole complaint, or to any of the alleged causes of action stated therein.

Code, s. 240; C. C. P., s. 96.

476. Sustained for misjoinder, action divided. If the demurrer be allowed for the reason that several causes of action have been improperly united, the judge shall, upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein men

tioned.

Code, s. 272; C. C. P., s. 131.

477. Objection not appearing in complaint. When any of the matters enumerated as grounds of demurrer do not appear on the face of the complaint, the objection may be taken by answer.

Code, s. 241; C. C. P., s. 98.

478. Objection waived. If no such objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.

Code, s. 242; C. C. P., s. 99.

XV. ANSWER.

479. Contains what. The answer of the defendant must contain1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof, sufficient to form a belief.

2. A statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition. Code, s. 243; C. C. P., s. 100.

480. Debt for purchase money of land denied. If the defendant shall deny in his answer that the obligation sued on was for the purchase money of the land described in the complaint, it shall be the duty of the court to submit the issue so joined to the jury.

Code, s. 235; 1879, c. 217.

481. Counterclaim. The counterclaim mentioned in section four hundred and seventy-nine must be one existing in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action, and arising out of one of the following causes of action:

1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action.

2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action. Code, s. 244; C. C. P., s. 101.

482. Several defenses. The defendant may set forth by answer as many defenses and counterclaims as he may have, whether they be such as have been theretofore denominated legal, equitable, or both. They must each be separately stated and numbered, and refer to the cause of action which they are intended to answer in such manner that they may be intelligibly distinguished.

Code, s. 245; C. C. P., s. 102.

Note. Statute of limitations pleaded by answer only, see s. 360.

483. Contributory negligence pleaded and proved. In all actions to recover damages by reason of the negligence of the defendant, where contributory negligence is relied upon as a defense, it shall be set up in the answer and proved on the trial.

1887, c. 33.

XVI. REPLY.

484. When filed; cause at issue. The plaintiff shall join issue on the demurrer or reply to the answer at the same term to which such demurrer or answer may be filed; and the issues, whether of law or of fact, shall stand for trial at the next term succeeding the term at which the pleadings are completed: Provided, that where an action is instituted upon a bill, note, bill of exchange, liquidated and settled account, or for divorce, and summons in such action shall be served on the defendant at least thirty days before the term of court to which such summons shall be returnable, and a copy of the complaint filed in the clerk's office at least thirty days before such term of court, if civil cases can be tried at such, then and in such case such action shall stand for trial at such first term of court. Code, s. 208; 1870-1, c. 42, s. 5; 1901, c. 626.

485. What to contain: demurrer to answer. When the answer contains new matter constituting a counterclaim, 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

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and concise language, without repetition, any new matter not inconsistent with the complaint, constituting a defense to such new matter in the answer; and the plaintiff may in all cases demur to an answer containing new matter, where, upon its face, it does not constitute a counterclaim or defense; and the plaintiff may demur to one or more of such defenses or counterclaims, and reply to the residue of the counterclaim. And in other cases, when an answer contains new matter constituting a defense by way of avoidance, the court may in its discretion, on the defendant's motion, require a reply to such new matter; and in that case, the reply shall be subject to the same rules as a reply to a counterclaim.

Code, s. 248; C. C. P., s. 105.

486. Demurrer to reply. If a reply of the plaintiff to any defense set up by the answer of the defendant be insufficient, the defendant may demur thereto, and shall state the grounds thereof.

Code, s. 250; C. C. P., s. 107.

XVII. PLEADING, GENERAL PROVISIONS.

487. Forms of. The forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed by this chapter.

Code, s. 231; C. C. P., s. 91.

488. Subscribed; verified, when. Every pleading in a court of record must be subscribed by the party or his attorney; and when any pleading is verified, every subsequent pleading, except a demurrer, must be verified also.

Code, s. 257; C. C. P., s. 116.

489. Verification. The verification must be in substance that the same is true to the knowledge of the person making it, except as to those matters stated on information and belief, and as to those matters he believes it to be true; and must be by affidavit of the party, or if there be several parties united in interest, and pleading together, by one at least of such parties acquainted with the facts, if such party be within the county where the attorney resides, and capable of making the affidavit.

Code, s. 258; C. C. P., s. 117; 1868-9, c. 159, s. 7.

490. Verification by agent or attorney. The affidavit may also be made by the agent or attorney, if the action or defense be founded upon a written instrument for the payment of money only, and such instrument be in the possession of the agent or attorney, or if all the material allegations of the pleading be within the personal knowl

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