Code Remedies: Remedies and Remedial Rights by the Civil Action According to the Reformed American Procedure; a Treatise Adapted to Use in All the States and Territories where that System Prevails

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Little, Brown,, 1904 - Actions and defenses - 983 pages

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Contents

Section Page
30
Where equitable remedy only is demanded and legal remedy only
36
SECTION THIRD
42
Illustrations and examples
48
SECTION FOURTH
55
Section Page
57
Conflict in New York Phillips v Gorham Rule in Kansas
63
Importance of subjectmatter dwelt upon in Section Fifth Final
69
Conclusion Criticism of the author Difference in the
75
Same subject
81
Section Page 57 Same subject
83
Same subject
84
Statutory provisions Interpretation Two views
85
More radical statutes in a few States Outline of treatment of parties
86
SECTION SECOND THE REAL PARTY IN INTEREST TO BE MADE PLAINTIFF 62 Statutory provision as to real party in interest
87
Principal effect of statutory provision
88
Equitable assignment Same rule Illustrations
89
Effect of statute in case of negotiable instruments Conflict in opinion
91
New York decisions
93
Rule in other States
94
Absolute assignment made conditional or partial by contemporane ous and collateral agreement
96
Instances of action by assignee as real party in interest
99
Same subject
100
Joinder of assignor in some States
101
Assignment pendente lite Substitution of assignee
102
Assignment of part of demand Action by grantee on covenants
103
Suing to the use of another Beneficiaries under express trusts
104
Actions by third persons for whose benefit contracts have been made
105
Commercial paper Action by legal promisee
112
Instances of real party in interest Actions on bonds actions by principals and agents etc
114
Particular injury to plaintiff essential in certain cases People cannot maintain action to redress private wrong 117
117
Special provision in New York respecting action by grantee of land held by disseisor at time of conveyance Partnerships
119
SECTION THIRD THE EFFECT OF AN ASSIGNMENT OF A THING IN ACTION UPON THE DeFences THERETO 82 Statutory provisions respec...
120
Defences and counterclaims distinguished
121
The rule as existing prior to the codes stated Assignee takes subject to equities and legal defences
122
Doctrine applies also to second and subsequent assignees
123
Illustration
135
SECTION FOURTH
141
173
145
Same subject New York cases
147
Other classes of trustees
153
Actions by general guardians
159
The statute in effect an enactment of the equity doctrine
163
Interpretation given by the courts of New York and Ohio
169
Recapitulation of judicial views Cases in which there is
175
207
178
Effect of misjoinder of parties plaintiff Common law
181
Extreme limits to which some courts have carried doctrine as to joint rights
183
New York cases Criticism
189
Same respecting nonjoinder Less liberal interpretation here
194
Decisions under the codes
195
Legal actions by persons having joint rights arising from con tract
197
Code decisions Partowners of ships
201
Same subject Illustrations
207
Criticism of cases holding that a joint promisee cannot be made
209
a defendant 146 Legal actions by persons having several rights arising from con
210
tract
211
Legal actions by persons having joint rights arising from personal torts
214
Legal actions by persons having several rights arising from per sonal torts
215
Actions in special cases
216
Actions by parents or guardians for the seduction of or injury to their children or wards 210 214 215
219
Actions by and between Husband and Wife 151 Common law and equity rules 152 Statutory provisions
221
Wife must sue alone in some States
224
Result of New York statutes
225
Actions for personal torts and for fraud and deceit
226
Actions for personal torts to wife
228
Actions for torts to wifes person in New York and States having similar statutes
230
Actions for torts to wifes property
231
Tort actions between husband and wife 160 Desertion by husband as affecting wifes capacity to sue 221 221 224 225 226
232
Equitable Actions 161 Grand principle underlying equity doctrine Scope of inquiry
234
Equity rules more explicit respecting defendants than plaintiffs Two classes of coplaintiffs in equity
235
Statement of fundamental principle and what it assumes Special subject of inquiry stated
237
Subordinate general principles herein Where actual plaintiff holds only equitable right or title holder of legal right or title should be made coplaintiff
238
Case of suits by assignees Change effected by codes 166 Case of suits for administration of decedents estates
240
Rule applicable to persons having legal demands arising out of same subjectmatter 168 All holders of concurrent equitable rights against the defenda...
241
Doctrine extends to actions relating to personal property Illustra
244
Section Page
246
Case of suits by executors and administrators and suits by
253
Case of creditors suits
259
Miscellaneous cases Joinder of holders of separate liens Creditors
265
Consequences of nonjoinder of defendants
273
Recapitulation of code reforms respecting misjoinder of defend
279
recommendation
280
Contribution
282
Actions by taxpayers
283
Actions to redeem
284
Actions against owners or possessors of chattels In actions
286
199
287
Survivorship In States containing no special statutory provi
292
Actions upon contract several liability No change in common
299
tions
300
Page
302
Common carriers
305
When liability arises from same instrument
307
Joinder in case of substituted debtor
311
Section Page
312
238
313
Distinction between necessary and proper parties illustrated
318
Variations in practical rules due to differences in local law
324
Personal representative of owner of mortgaged premises neces
330
239
333
240
335
241
336
244
339
Section Page 245 Assignee of judgment debtor a necessary party Where legal title is in third person and equitable ownership in debtor
341
Assignees of separate parcels of property should be joined Reason herein
342
Actions relating to the estates of deceased persons
343
Illustrations
344
When administrator is not a necessary party Illustration
345
When legatees and next of kin are neither necessary nor proper parties
346
When a different rule applies
347
Trusts Actions to enforce performance of express trusts Trus tees and survivors necessary parties
348
Joining beneficiaries Distinction between actions in opposition to and in furtherance of the trust
349
Implied trustee necessary party in actions to reach property
352
Actions against corporations and stockholders and between part ners Introductory
354
Judgment creditors Stockholders
355
Corporation officers and assignee
356
Accounting by one partner against another and by surviving partner
357
Actions for specific performance Conflict of opinion herein
358
Holder of adverse claim Personal representative of deceased vendor Heirs New York and lowa cases
359
Prior mortgagee Agent of vendor Person making redemption
361
Illustrations of action and its form
363
Case in New York
364
Actions for partition Their general purpose General creditors Holders of liens on entire tract
365
Holders of liens on undivided shares
366
Different rule where object of suit is to sell land and divide proceeds
368
Joinder of wife of tenant in common Administrator of deceased tenant in common In New York
370
In Indiana and California
371
Actions for various miscellaneous objects Partnersbip matters and accounting
372
Rescission and cancellation
373
Statutory provision
379
Authors analysis of language of statute Two distinct cases Essential elements of each case
380
Necessary allegations herein
382
Judicial interpretation of statute Order pursued in examination of decided cases
383
Statute reenacts equity rule Must be some connection between parties represented in both cases Test
384
Applicable both to legal and equitable actions Number of parties in second case
385
Particular instances
386
Same subject
387
Nature of such action What essential on part of those not named in order to become parties
388
Equity rule Rule in Kentucky 295 Question whether one has made himself a party may present itself in two aspects
389
Same subject 297 Conclusion of author from discussion
391
Necessary averments of complaint or petition 385 386 387 388
392
SECTION EIGHTH
393
Two classes of statutory provisions compared and distinguished
396
Turningpoint of decisions herein Illustrations
397
Forms of contract included in statute Illustrations Form of judgment 301 Form of judgment continued Discussion by Wisconsin Supreme Court
398
Joint and several liability may be treated by promisee or obligee as several under statute herein
401
Two types of code provisions herein
404
Statutory provisions of first form
405
Statutory provision of second form 311 Three transactions herein First of said transactions Moving party
406
Second of said transactions Scope of statutory provision herein Moving party
407
Intervention in Iowa and California Origin
408
Third of said transactions Interpleader How distinguished from other of said transactions
409
Bringing in additional parties When the court must
410
Same subject
412
Same subject Limitations herein
413
Examples and illustrations Pleadings Rule in Indiana in refer ence to assignors
414
Authors suggestions herein
415
Intervention Need not be necessary party Discretion of court Time of application 321 Statutory provision limited Illustrations
417
Additional illustrations
419
The Iowa and California system of intervening Illustrative examples
420
393
421
Authors statement of the doctrine
427
Concluding remarks 409 410 412 413
428
The Formal Statement of the Cause of Action by the Plaintiff SECTION FIRST THE STATUTORY PROVISIONS
430
Statutory provisions as to complaint 328 Statutory provisions applicable to all pleadings
436
Effect of misjoinder in some States
452
Motion by adverse party requiring correction of pleading
454
Remedy when second form of misjoinder occurs
456
Rule in few States
457
Remedy when third case of misjoinder occurs
458
Meaning of the Term Cause of Action where one cause of Action only is stated although several Different kinds of Relief are demanded 9 316 Conf...
459
Remedy Elements of every judicial action Elements constitut ing cause of action
460
Cause of action and remedial right differentiated Examples
462
Test in determining whether different causes of action have been stated Caution in applying test
465
Two or more distinct rights each invaded by distinct wrongs and two rights invaded by one and the same wrong or one right broken by two separate ...
467
Cause of action not to be confounded with relief Illustrative
471
Section Page 351 Same subject
475
Cases in Missouri
476
Summary
477
Controlling words herein Necessity of judicial definition of
478
Language of Comstock J and authors criticism
479
1
480
Observations made by courts respecting meaning of these terms
481
Authors criticism
482
Same subject
484
Same subject
485
Same subject
486
Jones v Steamship Cortes
487
Observations of the author Two alternatives
488
Meaning of subject of action
492
Examples of causes of action held to have arisen out of the same transaction
494
Examples of causes of action held not to have arisen out of the same transaction
497
Instances in which the Proper Joinder of Causes of Action is connected with the Proper Joinder of Defendants Discussion of the Provision that all the...
498
Effect of code provision requiring that causes of action joined in one complaint must affect all the parties
499
Illustration
500
Illustrations
501
Causes of action so joined must also affect all the plaintiffs Nlus trations
502
The doctrine as stated by the New York Court of Appeals re specting a cause of action against an executor administrator or trustee united with one ag...
504
Illustrations
505
Calverts observations upon the distinction between subject and object of the action
509
Same subject
512
Section Page 383 Authors criticism of Calverts theory
513
Application of Calverts analysis to the language of the codes
514
Joinder of causes arising out of contract Illustrations
515
Additional illustrations
516
Causes for injuries to property Illustrations
517
Malicious prosecution and slander or libel
518
Special cases
519
Illustrations from Indiana and California
520
Cause of action upon contract cannot be joined with one to re cover damages for a tort Illustrations Authors criticism
521
Illustrations
522
396
523
397
525
398
526
399
527
401
528
The commonlaw system of pleading Introductory
531
Technicality of the system
532
Essential principles and elements of commonlaw pleading
533
Same subject
534
History of the action of assumpsit
536
Outline of proposed discussion of reformed procedure
539
The theory generally adopted
541
Manner of averring material facts
542
The term cause of action 517
547
True signification of the term
548
Complete statement of entire cause of action would include legal
549
Only ultimate facts are to be alleged
555
Cases supporting doctrine that facts not legal conclusions are
561
Instances of allegations approved or condemned by the courts
570
430
576
Criticism of Booth v Farmers and Mechanics Bank
582
436
584
Criticism of doctrine
588
439
590
442
595
Statutory provisions Two groups Special provisions of Indiana
602
of objecting to and correcting them Distinctions
609
Instances where variance has been held immaterial
616
Variance fatal where cause of action in tort alleged and one
623
Illustrations of causes ex delicto
629
Conflict of authority on right to amend by substituting different
636
New procedure makes no change in doctrine of election
646
Method of indicating election Averment of promise as a test
652
Rule as to statement of same cause of action in different counts
659
Defective complaint aided by averments in answer
665
The Defensive SubjectMatter of the Action The Formal Presentation of
691
Statutes providing for setoff
698
Liberality of the codes in furtherance of justice
704
Defects of form are waived by neglect to move and going to trial
719
Partial defences
725
Section THE DEFENCE OF DENIAL Page 501 Species of denial
728
Outline of proposed treatment
729
Issuable facts as distinguished from evidentiary facts and from conclusions
731
Illustrative case
733
Allegations admitted by failure to deny
734
Negatives pregnant How they may arise
737
Illustrations
738
Conflict of authority as to whether a negative pregnant raises an issue
741
The better doctrine
742
Pleading new matter equivalent to a denial
743
Remedy for such a denial is by motion under the codes
744
Where answer contains general denial and also a special defence of new matter equivalent to general denial
745
Combination of general and argumentative denials
746
Practice in Indiana in respect to argumentative denials
747
General denials of all allegations not otherwise admitted or re ferred to
748
Proper distinction to be observed between general and specific denials
749
Difficulty arising from this form of answer
750
Facts not conclusions of law should be denied
752
Illustrations
754
Denials of knowledge or information Formula prescribed by statute should be followed
755
When a denial of knowledge or information is not allowed
757
Outline of proposed treatment of issues raised by denials
759
The general denial McKyring v Bull
760
Further illustrations
761
Necessity of reply depends upon nature of defence
763
Section Page 5 39 Same subject
764
Same subject
765
Construction adopted in California
766
Twofold office of general denial No exact statement possible of particular defences admissible under it
767
Only material averments put in issue by general denial
769
Only issuable facts are material Test to distinguish them from evidentiary facts
770
Allegations of legal conclusions not controverted by general denial
771
General nature of evidence admissible under denials
772
Evidence proper under denials may be affirmative or negative
773
Distinction between general issue and plea of confession and avoidance at common law not the same as that between general denial and new matter u...
774
Same subject
775
Particular defences admissible under the general denial In actions for compensation for services
776
In actions for negligent injuries
777
Assignment want of consideration etc
778
In actions for conversion
779
In actions to recover possession of goods
780
In actions to recover possession of land
781
In actions in which malice is an essential ingredient
782
In actions for specific performance
783
In actions on covenants and judgments
784
Special statutory provisions as to denying existence of corporation and partnership
785
Special statutory provisions as to denials in actions on written instruments
786
General denial cannot be struck out as sham
787
SECTION FOURTH THE DEFENCE OF New MATTER 562 Introductory
788
Further illustrations
790
Averments of new matter as basis for affirmative relief
791
The General Nature of New Matter Defences in Mitigation of Damages and in Abatement 566 Introductory
792
New matter as confession and avoidance
794
Defences in mitigation of damages Commonlaw theory
795
Some Particular Defences of New Matter Classified and Arranged
801
Actions concerning lands
807
New matter distinguished from denials by Supreme Court
813
Same subject
820
theory
827
Effect of admissions in one defence upon issues raised in another
834
and Iowa codes Similarity of code provisions
835
727
837
Origin of setoff and recoupment Resemblances and dissimilarities
841
Counterclaim broader than setoff and recoupment Kinds
847
Cause of action must exist against the plaintiff
853
Application of doctrine Limitation established by New York
859
The Parties in their Relations with the CounterClaim
868
Section Page
871
Several judgment between some of the parties Inquiry presented
878
Counterclaim may fail for want of necessary parties especially
884
Is counterclaim possible in action to recover possession of chattels ?
890
Case of Scheunert v Kaehler Criticism
896
Cannot defeat counterclaim by choice of form of action Thomp
900
The phrase connected with Connection must be immediate
906
Classification and arrangement of cases to be cited
912
Same subject
919
Construction of the phrases subject of the action connected
925
CounterClaims Embraced within the Second Subdivision of the Statutory
928
A judgment against
934
Form of verdict finding and judgment
940

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Common terms and phrases

Popular passages

Page 150 - ... Every action must be prosecuted in the name of the real party in interest, except that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A person with whom or in whose name a contract is made for the benefit of another is a trustee of an express trust, within the meaning of this section.
Page 85 - The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights ; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in.
Page 170 - All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this article.
Page 83 - Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one,' who should have been joined as plaintiff, cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint...
Page 7 - The distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and, there shall be in this State hereafter, but one form of action, for the enforcement or protection of private rights and the redress or prevention of private wrongs, which shall be denominated a civil action.
Page 301 - Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff...
Page 83 - ... when the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.
Page 443 - The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect.
Page 407 - ... notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount of the debt, or delivering the property or its value to such person as the Court may direct ; and the court may, in its discretion, make the order.
Page 443 - The court may, before, or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect...

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