held that where a cause of action is so defectively set out that a defendant desires to know upon what particular acts of negligence the plaintiff relies to sustain his action, it is the duty of the defendant to make a motion to have the complaint made more definite and certain; and, when this is not done, the plaintiff has the right to introduce any competent evidence tending to show negligence on the part of the defendant." Hypothetical Pleading. It was held in Emison v. Owyhee Ditch Co. (1900), 37 Ore. 577, 62 Pac. 13, that hypothetical pleading is bad, but whether the objection should be taken by motion to make more definite and certain (6 Ency. Pl. & Pr. 269); or by motion to strike out (Bliss on Code Pi. § 317) was not decided. See also Daniells v. Fowler (1897), 120 N. C. 14, 26 S. E. 635, and Peuder v. Mallett (1898), 123 N. C. 57, 31 S. E. 351, where it is held that motion, not demurrer, is the proper remedy. Facts should be alleged positively. The material facts of a cause of action or defence should be alleged unequivocally, and will not be considered sufficient where they are stated as contingent or conjec tural: Atchison, T. & S. F. Ry. Co. v. Atchison Grain Co. (1902), Kan. —, -,70 Pac. 933. General Pleading. In Chicago, St. Louis, etc. R. R. Co. v. Wolcott (1894), 141 Ind. 267, 39 N. E. 451, the court held that in civil cases it is the rule that where a subject comprehends multiplicity of matter, and a great variety of facts, there, in order to avoid prolixity, the law allows general pleading. Quoted from 1 Chitty's Pleading 235, and approved. And it was held in Equitable Ins. Co. v. Stout (1893), 135 Ind. 444, 33 N. E. 623, that a general allegation is ordinarily sufficient when the matters to be pleaded tend to indefiniteness and multiplicity, but the complaint must show by allegation the extended and complicated character of the books, accounts, etc., or other allegations from which the rule may be applied. Although a general averment may be sufficient, if the pleader alleges, in addition thereto, specific facts, the latter will control the general averment: Louisville, etc. Ry. Co. v. Kemper (1896), 147 Ind. 561, 47 N. E. 214; Fitzpatrick v. Simonson Bros. (1902), 86 Minn. 140, 90 N. W. 378; Carlson v. Presbyterian Board (1897), 67 Minn. 436, 70 N. W. 3; Gowan v. Bensel (1893), 53 Minn. 46, 54 N. W. 934; Chesapeake, etc. Ry. Co. v. Hanmer (1902), Ky., 66 S. W. 375; Sebree Deposit Bank v. Moreland (1894), 96 Ky. 150, 28 S. W. 153. Necessity of Motion. In Sidway v. Missouri Land, etc. Co. (1901), 163 Mo. 342, 63 S. W. 705, the court said: "In order to raise the question of the indefiniteness of a pleading, however, it is by no means necessary to file a motion to make it more definite and certain; and this is so for two reasons: 1st. The duty of requiring the pleadings to be definite and certain devolves on the court; 2d. The onus of making the pleading definite and certain is on the party drawing it. Pleading by Way of Recital. It is a well-recognized general rule that material facts, essential to the cause of action, should be alleged directly and not by way of recital. In Berry v. Dole (1902), 87 Minn. 471, 92 N. W. 334, it was held that a pleading which offended against this rule was bad on general demurrer. The same doctrine was announced by the Supreme Court of Indiana, in Erwin v. Cent. Union Tel. Co. (1897), 148 Ind. 365, 46 N. E. 667. The rule was very instructively applied, in McElwaine-Richards Co. v. Wall (1902), 159 Ind. 557, 65 N. E. 752, to a complaint by a servant for an injury suffered from a fall consequent upon his being sent to work in an insecure and unsafe place. Also in Leadville Water Co. v. Leadville (1896), 22 Colo. 297, 45 Pac. 362, it was held that allegations by way of recital are insufficient, and objection thereto may be taken by general demurrer, for the reason that an allegation by way of recital cannot be denied, and no issue concerning it can ever be raised. The court cites the text, §§ 549, * 550. For the contrary doctrine see City of Santa Barbara v. Eldred (1895), 108 Cal. 294, 41 Pac. 410. * Pleading on Information and Belief. In Missouri allegations upon information and belief are not deemed proper. In Nichols & Shepard Co. v. Hubert (1899), 150 Mo. 620, 51 S. W. 1031, the court demurrer for want of sufficient facts would have been sustained, said: "While the first four paragraphs of the petition state and aver facts, the form of averment is changed in the fifth, and the pleader then alleges that he is in formed and believes the facts therein recited, and as these recited facts are essential to plaintiff's cause of action the defect is fatal unless this form of averment is permissible under the code. The statute requires in a petition a plain and concise statement of the facts constituting the cause of action. A statement of information and belief as to facts is not within the meaning of this statute." In Iowa, however, in the case of Robinson v. Ferguson (1903), Ia., 93 N. W. 350, they were held sufficient in the absence of a motion attacking the pleading on that ground. In Minnesota the court has gone still further. In State ex rel. v. Cooley (1894), 58 Minn. 514, 60 N. W. 338, after referring to the statute requiring that the verification of pleadings shall be to the effect that the same are true to the knowledge of the person making them, except as to those matters stated on information and belief, and, as to those matters, that he believes them to be true, the court said: "This language is not confined merely to the denials in the answer of the controverted allegations in the complaint, but applies to all pleadings, including matters stated in the complaint on information and belief. Why else should the party be required or allowed to verify the matters stated in the complaint upon information and belief, unless he is allowed to insert such matters in that form? Evidently, this section of the statute contemplates that such allegations may be inserted in any of the pleadings; and we believe that such has been the usual practice in this State ever since its admission into the Union in 1858. It would be a great misfortune for us now to declare that practice invalid, and we refuse so to do." The objection that the averments in a complaint are made on information and belief is not a ground for demurrer: Carpenter v. Smith (1894), 20 Colo. 39, 36 Pac. 739; Jones v. Pearl Min. Co. (1894), 20 Colo. 417, 38 Pac. 700. Predicating Error as to Formal Defects. Tipton Light, etc. Co. v. Newcomer (1900), 156 Ind. 348, 58 N. E. 842: It is the right of a defendant to have the plaintiff state specifically the facts constituting alleged negligence, and where the motion to make more specific is well taken the court has no discretion. Failure to sustain such a motion when properly made is reversible error. But see Chicago, B. & Q. R. Co. v. Oyster (1899), 58 Neb. 1, 78 N. W. 359: 'One cannot predicate error on the refusal to require the pleading of the opposite party to be made more definite and certain where prejudice has not resulted from the ruling." The same rule seems to obtain in Wisconsin. See Adamson v. Raymer (1896), 94 Wis. 243, 68 N. W. 1000, where it was held that an order directing a pleading to be made more definite and certain is discretionary, and is not appealable unless there has been an abuse of discretion. To the same effect is Crowley v. Hicks (1898), 98 Wis. 566, 74 N. W. 348. And in Washington, in Green v. Tidball (1901), 26 Wash. 338, 67 Pac. 84, it was held that in order to cause a reversal there must be not only technical defects in the pleading but also some substantial injury resulting therefrom to the complaining party. See also St. Louis & S. F. Ry. Co. v. French (1896), 56 Kan. 584, 44 Pac. 12. Pleading over after a motion is overruled, is a waiver of the right to have the ruling reviewed: Rinard v. Omaha, etc. Ry. Co. (1901), 164 Mo. 270, 64 S. W. 124; State ex rel. v. Merchants' Bank (1901), 160 Mo. 640, 61 S. W. 676; Sanguinett v. Webster (1900), 153 Mo. 343, 54 S. W. 563; Kelly v. Town of West Bend (1897), 101 Ia. 669, 70 N. W. 726; Wattels v. Minchen (1895), 93 Ia. 517, 61 N. W. 915; Manwell . Burlington, etc. Ry. Co. (1894), 89 Ia. 708, 57 N. W. 441 ; Banker's Reserve Life Ass'n v. Finn (1902), 64 Neb. 105, 89 N. W. 672. Standing on Pleading after Motion Sustained. McAdam v. Scudder (1894), 127 Mo. 345, 30 S. W. 168: Where the court, on motion of defendant, requires the petition to be made more definite and certain, and plaintiff elects to stand on the petition, the cause may properly be dismissed by the court. Same rule stated in Sidway but the adverse party answers instead, and goes to trial, the objection to the pleading is thereby waived, and evidence in its v. Missouri Land, etc. Co. (1901), 163 Mo. Co., 111 Ia. 590, and cases cited. Doubt342, 63 S. W. 705. Test of Definiteness. In American Book Co. v. Kingdom Publishing ('o. (1898), 71 Minn. 363, 73 N. W. 1089, the court said: "If the court can see the meaning of the different allegations, and the cause of action or the defence intended to be set forth by them, the pleading is not indefinite." See also- City of Logansport v. Kihm (1902), 159 Ind. 68, 64 N. E. 595, where a complaint is instructively analyzed and shown not to set forth the facts constituting the cause of action in such a manner as to enable a person of common understanding to know what was intended. Waiver of Formal Defects. Larsen v. Utah Loan & Trust Co. (1901), 23 Utah, 944, 65 Pac. 208: Where allegations of fraud are general and no objection is made thereto in the trial court, the defect is waived. Bennett v. Minott (1896), 28 Ore. 339, 44 Pac. 283: The objection of uncertainty in a complaint comes too late after judgment. Holman v. De Lin (1897), 30 Ore. 428, 47 Pac. 708: A motion to strike out parts of an answer is waived by the subsequent filing, hearing, and determining of a demurrer thereto. Graves v. Barrett (1900), 126 N. C. 267, 35 S. E. 539: A defective statement of a good cause of action is waived when it is ap parent from the answer that the defendants were fully apprised of the subject-matter of the suit. See also Mizzell v. Ruffin (1896), 118 N. C. 69, 23 S. E. 927. Ashton v. Stoy (1895), 96 Ia. 197, 64 N. W. 804 Overruling a motion for more specific statement is not waived where no subsequent pleading is filed. Zion Church v. Parker (1901), 114 Ia. 1, 86 N. W. 60: A defect appearing on the face of the plead ings is waived if no objection is taken in the lower court. Warthen v. Himstreet (1900), 112 Ia. 605, 84 N. W. 702: The court said: "We have held that a defendant may be concluded by a default when the facts stated in the petition do not state a good cause of action at law, or when the petition is so defective as to be vulnerable to a demurrer. Fred Miller Brewing Co. v. Capital Ins. less, if no cause of action is stated, a default has no such effect. Bosch v. Kassing, 64 Ia. 312. But Himstreet did state a cause of action. The defect in his petition was in matter of form only, and this the defendants could waive, and by their nonappearance did waive." Fenner v. Crips (1899), 109 Ia. 455, 80 N. W. 526: Where defendant asks an instruction based on a fact not averred with sufficient distinctness in plaintiff's petition, he thereby waives the defect. Van Etten v. Medland (1898), 53 Neb. 569, 74 N. W. 33: "The filing of a demurrer to a petition is a waiver of the right to insist that the allegations of the pleading shall be made more definite and certain." Mangum v. Bullion, etc. Co. (1897), 15 Utah, 534, 58 Pac. 834: Failure to allege specific facts constituting causes of action or special defences is waived by failure to demur or object to evidence, hence cannot be taken advantage of after judgment. Same rule adhered to in Maynard v. Locomotive, etc. Ass'n (1897), 16 Utah, 145, 51 Pac. 259. Young v. Severy (1897), 5 Okla. 630, 49 Pac. 1024 An allegation, though indefinite and uncertain and otherwise defective, of a material matter, is sufficient when first questioned by an objection to the introduction of any testimony thereunder. So, in Frobisher v. Fifth Ave. Transp. Co. (1897), 151 N. Y. 431, 45 N. E. 839, it was held that an objection to the introduction of any evidence because the allegations of the complaint were too general, was not available on appeal, when the defendant failed to move to make more specific. Whitlock v. Uhle (1903), 75 Conn. 423, 53 Atl. 891: Where a complaint asserts necessary facts in an insufficient manner, the defect cannot be taken advantage of, in the absence of demurrer, after trial and judgment on the merits. City of South Bend v. Turner (1900), 156 Ind. 418, 60 N. E. 271: Mere uncertainty or inadequacy of averment will be deemed waived by proceeding to trial without objection. Courts do not look support must be admitted. Other cases are directly opposed to this position, and expressly declare that if the complaint or petition fails to state any cause of action the objection is not waived, and all evidence should be excluded at the trial, even though the defendant has answered; and this ruling is in exact conformity with the provisions of all the codes regulating the use of demurrers.2 The doctrine first stated is clearly erroneous, and the dicta or decisions which sustain it ought to be wholly disregarded; it violates the section of the codes which enacts. that the absence of sufficient facts as a ground of demurrer is not abandoned by an omission to demur; and it utterly ignores the established distinction between a failure to state any cause of action and the statement of a cause of action in an imperfect and defective manner. It is only when the answer itself by some of its averments supplies the omission in a complaint or petition otherwise demurrable, that the fault is cured and the objection waived by answering; mere answering instead of demurring with favor on the practice of attack ing pleadings at the trial: Haseltine v. Smith (1900), 154 Mo. 404, 55 S. W. 633 By filing an answer defendant waives all objections of form in the petition: Gelatt v. Ridge (1893), 117 Mo. 553, 23 S. W. 882; McCall v. Porter (1903), 42 Ore. 49, 71 Pac. 926; Hughes v. McCollough (1901), 39 Ore. 372, 65 Pac. 85; Lovejoy v. Isbell (1900), 73 Conn. 368, 47 Atl. 682; Welsh v. Burr (1898), 56 Neb. 361, 76 N. W. 905 (reply). But defendant may, in his answer, expressly reserve the right to insist on a motion to make more definite and certain when duly noticed: Whaley v. Lawton (1898), 53 S. C. 580, 31 S. E. 660. Cases where Pleadings have been held Uncertain. Dodds v. McCormick Harvesting Mach. Co. (1901), 62 Neb. 759, 87 N. W. 911: a petition declaring on a promissory note; Kyd v. Cook (1898), 56 Neb. 71, 76 N. W. 524: a petition in an action for wrongful attachment; Olson v. Phoenix Mfg. Co. (1899), 103 Wis. 337, 79 N. W. 409: a complaint against three contractors for negligence; Buist v. Melchers (1894), 44 S. C. 46, 21 S. E. 449: a complaint against several successive boards of directors of a corporation for omission of duty; Koboliska v. Swehla (1898), 107 Ia. 124, 77 N. W. 576: petition in action for money paid at request of defendant; Hall v. Law Guarantee, etc. Co. (1900), 22 Wash. 305, 60 Pac. 643: complaint in replevin; Union Nat. Bank v. Cross (1898), 100 Wis. 174, 75 N. W. 992: answer in action on promissory note; Koepke . Milwaukee (1901), 112 Wis. 475, 88 N. W. 238: complaint against city for negligent injury; McFadden v. Stark (1893), 58 Ark. 7, 22 S. W. 884: complaint in action to enforce a mechanic's lien; Maine v. Chicago, etc. R. R. Co. (1899), 109 Ia. 260, 80 N. W. 315 petition in action for negligent injuries; Atchison, etc. Ry. Co. v. Potter (1899), 60 Kan. 808, 58 Pac. 471: petition in action for personal injuries; Hastings v. Anacortes Packing Co. (1902), 29 Wash. 224, 69 Pac. 776: complaint in an action for possession of a fishing site; Dishneau v. Newton (1895), 91 Wis. 199, 64 N. W. 879: complaint against sureties on sheriff's bond (held sufficiently specific).] 1 Treadway v. Wilder, 8 Nev. 91. 2 Garner v. McCullough, 48 Mo. 318; Scofield v. Whitelegge, 49 N. Y. 259, 261, 262; Saulsbury v. Alexander, 50 Mo. 142, 144. cannot produce that effect. If the averments are so defective, if the omission of material facts is so great, that, even under the rule of a liberal construction, no cause of action is stated, it is not a mere case of insufficiency, but one of complete failure; and the complaint or petition should be dismissed at the trial, or a judgment rendered upon it should be reversed. it should be reversed. A few examples are placed in the foot-note. While the general doctrine before 1 Scofield v. Whitelegge, 49 N. Y. 259, 261, 262; Bate v. Graham, 11 N. Y. 237; Louisville & P. Canal Co. v. Murphy, 9 Bush, 522, 529. 2 Antisdel v. Chicago & N. W. Ry. Co., 26 Wis. 145, 147; Tomlinson v. Monroe, 41 Cal. 94 (an ambiguous and unintelligible complaint); Holmes v. Williams, 16 Minn. 164, 168. The case described in the text is that of a cause of action, good if properly pleaded, which the plaintiff intended and attempted to set out, but which he failed to set out by reason of omissions and defects in the material allegations; and it is to be distinguished from a cause of action entirely bad in law, no matter how complete and perfect may be the averments by which it is stated. In the first case a pure question of pleading is involved, and the complaint or petition is demurrable because the rules of pleading have been essentially violated; in the second case a pure question of law is involved, and the complaint or petition is demurrable, although the rules of pleading have been in every respect complied with. [Wholly Deficient Pleadings. Waiver of Defects of Substance. The objection that a pleading does not state facts constituting a cause of action or defence is never waived, but may be raised at any stage of the proceedings: O'Toole v. Faulkner (1902), 29 Wash. 544, 70 Pac. 58; Jones v. St. Paul, etc. Ry. Co. (1896), 16 Wash. 25, 47 Pac. 226; Hoffman v. McCracken (1902), 168 Mo. 337, 67 S. W. 878; Lilly v. Menke (1894), 126 Mo. 190, 28 S. W. 643; McPeak v. Mo. Pac. Ry. Co. (1895), 128 Mo 617, 30 S. W. 170; State ex rel. v. Thompson (1899), 149 Mo. 441, 51 S. W. 98; Epperson v. Postal Tel. Co (1900), 155 Mo. 346, 50 S. W. 795; Wells. Mutual Benefit Ass'n (1894), 126 Mo. 630, 29 S. W. 607, holding that even a stipulation by the parties as to the issues in a case does not waive the question of the sufficiency of a petition; State ex rel. v. Moores (1899), 58 Neb. 285, 78 N. W. 529; Latenser v. Misner (1898), 56 Neb. 340, 76 N. W. 897; Tracy v. Grezaud (1903), — Neb. 93 N. W. 214; Hudelson v. First Nat. Bank (1897), 51 Neb. 557, 71 N. W. 304; Sage v. City of Plattsmouth (1896), 48 Neb. 553, 67 N. W. 455; Kemper v. Renshaw (1899), 58 Neb. 513, 78 N. W. 1071; Dufrene v. Anderson (1903), — Neb. -, 93 N. W. 139; City of South Bend v. Turner (1900), 156 Ind. 418, 60 N. E. 271; Galvin v. Britton (1898), 151 Ind. 1, 49 N. E. 1064; Insurance Co. v. Bonner (1897), 24 Colo. 220, 49 Pac. 366; School District v. Flanigan (1901), 28 Colo. 431, 65 Pac. 24; Mizzell v. Ruffin (1896), 118 N. C. 69, 23 S. E. 927; City of Guthrie v. Nix (1895), 3 Okla. 136, 41 Pac. 343; De Loach Mill Co. v. Bonner (1897), 64 Ark. 510, 43 S. W. 504 ; Warner v. Hess (1899), 66 Ark. 113, 49 S. W. 489; Buckman v. Hatch (1903), 139 Cal. 53, 72 Pac. 445; Moore v. Halliday (1903), 43 Ore. 243, 72 Pac. 801. But see Queen City Printing Co. v. McAden (1902), 131 N. C. 178, 42 S. E. 575, and O'Donohoe v. Polk (1895), 45 Neb. 510, 63 N. W. 829, where it was held that the want of a material allegation is waived by failure to demur. See also Cook v. Am. Ex. Bank (1901), 129 N. C. 149, 39 S. E. 746; Duerst v. St. Louis Stamping Co. (1901), 163 Mo. 607, 63 S. W. 827. Pleading over after demurrer for want of facts has been overruled is not a waiver of the objection: Epperson v. Postal Tel. Co. (1900), 155 Mo. 346, 50 S. W. 795; Hoffman v. McCracken (1902), 168 Mo. 337, 67 S. W. 878; Jones v. St. Paul, etc. Ry. Co. (1896), 16 Wash. 25, 47 Pac. 226 (but see Hardin v. Mullin (1897), 16 Wash. 647, 48 Pac. 349, where it is held that an |