§ 328. * 434. Statutory Provisions Applicable to all Pleadings. The foregoing provisions describe the complaint or petition: the following clauses some of which, however, are not found in all the codes comprise the general rules applicable to all pleadings, which regulate their form and contents, and determine their sufficiency, the general principles, in short, which characterize the system of pleading provided for by the reformed procedure: "In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties."1 "If irrelevant or redundant matter be inserted in a pleading, it may be struck out on petition do not entitle the plaintiff to any relief whatever, advantage may be taken of it by motion in arrest of judgment before judgment is entered." [Arizona, Rev. St., 1901, § 1353. Arkansas, Sand. & Hill's Dig., § 5720, adding the words " over the subject of the action" after the word "court." Colorado, Code, 1890, §§ 54, 55. 3210. Indiana, Burns' St., 1901, § 346, adding the words "over the subject of the action after the word "court," and adding the following clause : Provided, however, That the objection that the action was brought in the wrong county, if not taken by answer or demurrer, shall be deemed to have been waived." Kentucky, Code, 1895, §§ 92, 93, adding the words "of the subject of the action" after the word "court," and providing that a neglect to raise the questions seasonably subjects the party to the payment of costs. Minnesota, St. 1894, §§ 5234, 5235. Missouri, Rev. St., 1899, § 602, adding the words "over the subject-matter of the action" after the word "court." Montana, Code, 1895, §§ 684, 685. in Utah, Rev. St., 1898, §§ 2966, 2967. Wisconsin, St., 1898, §§ 2653, 2654. 1 New York, § 159 (519); Kansas, § 115; Nebraska, § 121; California, § 452; Oregon, § 83; North Carolina, § 119. [Arkansas, Sand. & Hill's Dig., § 5754. Colorado, Code, 1890, § 77. Idaho, Code Civ. Pro., 1901, § 3223. Indiana, Burns' St., 1901, § 379, adding the following: "but when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defence is not apparent, the court may require the pleading to be made definite and certain by amendment." Iowa, Code, 1897, § 3446, reading as follows: "The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. Its provisions and all proceedings under it shall be liberally construed with a view to promote its objects and assist the parties in obtaining justice." Minnesota, St., 1894, § 5247. Missouri, Rev. St., 1899, § 629. Montana, Code, 1895, § 740. Nevada, Comp. Laws, 1900, § 3165. North Dakota, Rev. Codes, 1899, § 5283. Ohio, Bates' St., 1903, § 5096. Oklahoma, St., 1893, § 3993. South Carolina, Code, 1893, § 180. South Dakota, Ann. St., 1901, § 6130. Utah, Rev. St., 1898, § 2986. Washington, Bal. Code, § 4931. Wisconsin, St., 1898, § 2668. Wyoming, Rev. St., 1899, § 3570.] motion of any person aggrieved thereby; and when the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defence is not apparent, the court may require the pleading to be made definite and certain by amendment." 1 "All fictions in pleading are abolished."2 "A material allegation in a pleading is one essential to the claim or defence, 1 Kansas, § 119; Nebraska, § 125; California, § 453 (altered verbally); Oregon, § 84; North Carolina, § 120. [Arkansas, Sand. & Hill's Dig., § 5755, containing first clause only. Colorado, Code, 1890, § 60, containing the provisions quoted in the text, together with considerable other matter. Idaho, Code Civ. Pro., 1901, § 3224, reading as follows: "Sham and irrelevant answers and irrelevant and redundant matter inserted in a pleading, may be stricken out, upon such terms as the court may, in its discretion, impose." Indiana, Burns' St., 1901, § 385, reading in part as follows: "All surplusage, tautology, and irrelevant matter shall be set aside and struck out of any pleading, when pointed out by the party aggrieved," and also § 379, quoted on page 436, supra. Iowa, Code, 1897, § 3618, almost identical with the Idaho statute, quoted supra, and also § 3630, very similar to the second clause quoted in the text. Kentucky, Code, 1895, § 121, reading as follows: "Irrelevant or redundant matter in a pleading shall be stricken out, upon or without motion, at the cost of the party whose pleading contains it." Minnesota, St., 1894, § 5248, slightly varied from the form given in the text. Missouri, Rev. St., 1899, § 612, slightly varied from the form given in the text. Montana, Code, 1895, § 742, almost identical with the Idaho statute. Nebraska, Code, 1901, § 125, slightly varied from the form given in the text. Nevada, Comp. Laws, 1900, § 3152, reading as follows: "If irrelevant or redundant matter be inserted in a pleading, it may be stricken out by the court, on motion of any person aggrieved thereby." New York, Code Civ. Pro., §§ 545, 546, substantially similar to the statute quoted in the text, but somewhat more specific. North Dakota, Rev. Codes, 1899, § 5284. Washington, Bal. Code, § 4932, adding to the statute given in the text dismiss the same." or may Wisconsin, St., 1898, § 2683, substantially similar to the statute given in the text, but somewhat more specific. Wyoming, Rev. St., 1899, §§ 3561, 3562, identical with the Ohio statute.] 2 Kansas, § 116. [Idaho, Const., Art. 5, sec. 1, providing that "Feigned issues are prohibited." Indiana, Burns' St., 1901, § 381. Iowa, Code, 1897, § 3557. Missouri, Rev. St., 1899, § 610, providing that "No allegation shall be made in a pleading which the law does not require to be proved, and only the substantial facts necessary to constitute the cause of action or defence shall be stated." Nebraska, Code, 1901, § 4, identical with Ohio statute. North Carolina, § 15, providing that "Feigned issues are abolished."] North Dakota, Rev. Codes, 1899, § 5183, providing that "Feigned issues are abolished." Ohio, Bates' St., 1903, § 4973, providing that "There can be no feigned issue." Oklahoma, St., 1893, § 3884, identical with Ohio statute. South Carolina, Code, 1893, § 92, providing that "Feigned issues shall not be allowed." South Dakota, Ann. St., 1901, § 6032, identical with the North Dakota statute. Wisconsin, St., 1898, § 2841, stating that "Feigned issues have been abolished." Wyoming, Rev. St., 1899, § 3445, iden tical with Ohio statute. which could not be struck from the pleading without leaving it insufficient. Neither presumptions of law nor matters of which judicial notice is taken need be stated in the pleading." The following special provision, which is found only in a portion of the codes, and is not impliedly contained in the general principles common to them all, is quoted because of its practical importance as a rule of procedure in those States whose legislation has adopted it: "If the action, counter-claim, or set-off be founded on an account, or on a note, bill, or other written instrument, as evidence of indebtedness, a copy thereof must be attached to and filed with the pleading. If not so attached and filed, the reason thereof must be shown in the pleading.' "2 ing in part as follows: "When any pleading is founded upon a written instrument or on account, the original, or a copy thereof, must be filed with the plead 1 Kansas, §§ 129, 130; Nebraska, §§ 135, 136; California, § 463 (first clause only); Oregon, § 93 (the first clause only). [Arkansas, Sand. & Hill's Dig., ing. . . . Such copy of a written instru§§ 5762, 5751. ment, when not copied in the pleadings, Colorado, Code, 1890, § 72, first clause shall be taken as part of the record." Iowa, Code, 1897, § 3561, giving as one only. Idaho, Code Civ. Pro., 1901, § 3234, ground for demurrer, "if founded on an first clause only. Indiana, Burns' St., 1901, § 377, last clause only. Kentucky, Code, 1895, § 127, providing that "A material allegation is one which is necessary for the statement or support of a cause of action or defence," and § 119, providing that "neither the evidence relied on by a party, nor presumptions of law, nor facts of which judicial notice is taken, excepting private statutes, shall be stated in a pleading." Missouri, Rev. St., 1899, § 631, second clause only. Montana, Code, 1895, § 756, first clause only. Nevada, Comp. Laws, 1900, § 3161, first clause only. Ohio, Bates' St., 1903, §§ 5082, 5083. Oklahoma, St., 1893, §§ 4007, 4008. Utah, Rev. St., 1898, § 2997, first clause only. Washington, Bal. Code, § 4944. Wyoming, Rev. St., 1899, §§ 3556, 3557.] 2 Kansas, § 118; Nebraska, § 124. [Arkansas, Sand. & Hill's Dig., § 5752, with slightly different wording. Indiana, Burns' St., 1901, § 365, read account or writing as evidence of indebtedness, that neither such writing or account or copy thereof is incorporated into or attached to the pleading, or a sufficient reason stated for not doing so." Kansas, Code, 1901, § 118, adding the following clause, " But if the action, counter-claim or set-off be founded upon a series of written instruments executed by the same person, it shall be sufficient to attach and file a copy of one only, and in succeeding causes of action or defences to set forth in general terms descriptions of the several instruments respectively." Kentucky, Code, 1895, § 120, identical with the Arkansas statute. Missouri, Rev. St., 1899, § 630, allowing a copy of an account to be attached, at pleader's option, in lieu of setting forth the items in the pleading. Montana, Code, 1895, § 747, reading as follows: "Where a cause of action, defence or counter-claim is founded upon an instrument for the payment of money only, the party may set forth a copy of the instrument, and state that there is due him thereon, from the adverse party, a specified sum, which he claims. Such an allegation is equivalent to setting forth § 329. * 435. Statutory Provisions Respecting Amendment. Ample provision is made for the amendment of pleadings, either at the trial itself, or at any other time in the progress of the cause. The following sections are contained in all the codes, with some unimportant verbal variations in a few of them: "No variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defence upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended upon such terms the instrument according to its legal follows: "In an action, defence or couneffect." ter-claim founded upon an instrument for New York, Code Civ. Pro., § 534, iden- the payment of money only, it shall be tical with Montana statute. Ohio, Bates' St., 1903, § 5085, substantially the same as the provision quoted in the text, aud § 5086, reading as follows: "In an action, counter-claim, or set-off, founded upon an account, or upon an instrument for the unconditional payment of money only, it shall be sufficient for a party to set forth a copy of the account or instrument, with all credits and the indorsements thereon, and to state that there is due to him, on such account or instrument, from the adverse party, a specified sum, which he claims, with interest; and when others than the makers of a promissory note, or the acceptors of a bill of exchange, are parties, it shall be necessary to state the facts which fix their liability." Oklahoma, St., 1893, § 4001, reading in part as follows: "In an action, counterclaim or set-off, founded upon an account, promissory note, bill of exchange or other instrument, for the unconditional payment of money only, it shall be sufficient for a party to give a copy of the account or instrument, with all credits, and the indorsements thereon, and to state that there is due him, on such account or instrument, from the adverse party, a specified sum, which he claims, with interest." Oregon, Hill's Laws, § 83, allowing the pleader to set out the items of an account in the pleading, or to file a copy thereof, at his option. Wisconsin, St., 1898, § 2675, reading as sufficient for the party to give a copy of the instrument, and to state that there is due to him thereon, from the adverse party, a specified sum which he claims." Wyoming, Rev. St., 1899, § 3559. In the following States the pleader may deliver a copy of an account to the adverse party within a designated period, in lieu of setting out the items in his pleading: Idaho, Code Civ. Pro., 1901, § 3225; Nevada, Comp. Laws, 1900, § 3151; North Dakota, Rev. Codes, 1899, § 5282; South Carolina, Code, 1893, § 179; South Dakota, Ann. St., 1901, § 6129; Utah, Rev. St., 1898, § 2988; Arizona, Rev. St., 1901, § 1287.] For illustrations, see Evans v. Clermont, etc. Co., 51 Ind. 160; Excelsior Dr. Co. v. Brown, 38 id. 384; Etchison Ditching Ass'n v. Busenback, 39 id. 362; Dobson v. Duckpond D. Ass'n, 42 id. 312; Alspaugh v. Ben Franklin Dr. Ass'n, 51 id. 271; Montgomery v. Gorrell, 51 id. 309; Brown v. State, 44 id. 222; Mitchell v. Am. Ins. Co., 51 id. 396; Hinkle v. Margerum, 50 id. 240; Sanford v. Wood, 49 id. 165; Jagers v. Jagers, 49 id. 428; Hays v. Miller, 12 id. 187; Tyler v. Kent, 52 id. 583; Calvin v. Woolen, 66 id. 464 (neglect to file is cured by verdict); Ohio & Miss. Ry. Co. v. Nickless, 71 id. 271; Surginer v. Paddock, 31 Ark. 528; Hannibal & St. Jos. R. Co. v. Knudson, 62 Mo. 569. as shall be just." 1 "When the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs."2 66 Where, however, the allegation of the cause of action or defence to which the proof is directed is unproved, not in some particular or particulars, but in its entire scope and meaning, it shall not be deemed a case of variance within the last two sections, but a failure of proof." 3 Any pleading may be amended once by the party filing or serving it, as a matter of course, and without costs, and without prejudice to proceedings already had: such amendment must be made within specified times, which differ in the various codes; but will not be permitted if it appear to be merely for purposes of delay. 1 New York, § 169 (539); Kansas, § 133; Nebraska, § 138; California, § 469; Oregon, § 94; North Carolina, § 128. [Arkansas, Sand. & Hill's Dig., § 5764; Idaho, Code Civ. Pro., 1901, § 3237; Indiana, Burns' St., 1901, § 394; Iowa, Code, 1897, § 3597; Kentucky, Code, 1895, § 129; Minnesota, St., 1894, § 5262; Missouri, Rev. St., 1899, § 655; Montana, Code, 1895, § 770; North Dakota, Rev. Codes, 1899, § 5293; Ohio, Bates' St., § 5294; Oklahoma, St., 1893, § 4011; South Carolina, Code, 1893, § 190; South Dakota, Ann. St., 1901, § 6140; Utah, Rev. St., 1898, § 3001; Washington, Bal. Code, 4949; Wisconsin, St., 1898, § 2689; Wyoming, Rev. St., 1899, § 3736; Colorado, Code, 1890, § 78, in a different form.] 2 New York, § 170 (540); Kansas, § 134; Nebraska, § 139; California, § 470; Oregon, § 95; North Carolina, § 129. [Arkansas, Sand. & Hill's Dig., § 5765; Idaho, Code Civ. Pro., 1901, § 3238; In diana, Burns' St., 1901, § 395; Iowa, Code, 1897, § 3598; Kentucky, Code, 1895, § 130; Minnesota, St., 1894, § 5263; Missouri, Rev. St., 1899, § 656; Montana, Code, 1895, § 771; North Dakota, Rev. Codes, 1899, § 5294; Ohio, Bates' St., § 5295; Oklahoma, St., 1893, § 4012; South Carolina, Code, 1893, § 191; South Dakota, Ann. St., 1901, § 6141; Utah, Rev. St., 1898, § 3002; Washington, Bal. Code, § 4950; Wisconsin, St., 1898, § 2670; Wyoming, Rev. St., 1899, § 3737.] 8 New York, § 171 (541); Kansas, In § 135; Nebraska, § 140; California, § 471; Oregon, § 96; North Carolina, § 130. [Arkansas, Sand. & Hill's Dig., § 5766; Idaho, Code Civ. Pro., 1901, § 3239; Indiana, Burns' St., 1901, § 396; Iowa, Code, 1897, § 3599; Kentucky, Code, 1895, § 131; Minnesota, St., 1894, § 5264; Montana, Code, 1895, § 772; North Dakota, Rev. Codes, 1899, § 5295; Ohio, Bates' St., § 5296; Oklahoma, St., 1893, § 4013; South Carolina, Code, 1893, § 192; South Dakota, Ann. St., 1901, § 6142; Utah, Rev. St., 1898, § 3003; Washington, Bal. Code, § 4951; Wisconsin, St., 1898, § 2671; Wyoming, Rev. St., 1899, § 3738.] 4 New York, § 172 (542, 543, 497); Kansas, § 136; Nebraska, § 141; California, § 472; Oregon, § 97; North Carolina, $131. [Arizona, Rev. St., 1901, § 1288; Arkansas, Sand. & Hill's Dig., § 5767; Colorado, Code, 1890, § 73; Connecticut, Gen. St., 1902, § 639; Idaho, Code Civ. Pro., 1901, § 3240; Indiana, Burns' St., 1901, § 397; Iowa, Code, 1897, § 3560; Kentucky, Code, 1895, § 132; Minnesota, St., 1894, § 5265; Missouri, Rev. St., 1899, $661; Montana, Code, 1895, § 773; Nevada, Comp. Laws, 1900, § 3162; North Dakota, Rev. Codes, 1899, § 5296; Ohio, Bates' St., § 5111; Oklahoma, St., 1893, § 4014; South Carolina, Code, 1893, § 193; South Dakota, Ann. St., 1901, § 6143; Utah, Rev. St., 1898, § 3004; Wisconsin, St, 1898, § 2685; Wyoming, Rev. St., 1899, § 3585.] These provisions are substantially the |