SECTION FOURTH.

THE FORM OF THE COMPLAINT OR PETITION.

§ 465.574. Introductory. Having thus discussed and determined the fundamental principles and general doctrines of the reformed pleading, which apply to all causes of action, and to

all defences by way of confession and avoidance or of affirmative relief, I shall now briefly consider the rules which pertain to the form of the complaint or petition, and which regulate the manner of stating and arranging its allegations. These rules are few and simple; and their object is to render the issues single and certain, and to present the cause of action for a decision upon its merits, and not upon any technical, incidental, or collateral questions. In one important feature the new system stands in marked contrast with the old, the entire absence of all special phrases or formulas by which the kinds of actions are distinguished, or by which the pleadings or any parts of them are characterized.

§ 466. *575. Separate Statement of Different Causes of Action. Inducement and Prayer need not be repeated. When a complaint or petition contains two or more causes of action, all the codes require that they shall be distinctly and separately stated and numbered; and the method by which a violation of this requirement is to be corrected has already been explained. It is a settled rule, that if the pleading is of this kind, each separate division or count must be complete by itself, and must contain all the averments necessary to a perfect cause of action. Defects and omissions in one cannot be supplied by the allegations found in another; nor can the pleader, by merely referring to material facts properly set forth in a former count, incorporate them into and make them part of a subsequent one. In other words, all the issuable or material facts constituting the ground for a recovery must be stated in each cause of action, even though some repetition might thereby become necessary. This requirement,

Want of a definite theory is not ground for a demurrer, but for a motion to make more definite: Scott v. Cleveland, etc. Ry. Co. (1895), 144 Ind. 125, 43 N. E. 133. See also, upon the general subject of theory of complaint, Mark v. North (1900), 155 Ind. 575, 57 N. E. 902; Cleveland, etc. Ry. Co. v. Gray (1897), 148 Ind. 266, 46 N. E. 675.]

1 See supra, §§ * 447, *450.

2 [Clark v. Ross (1895), 96 Ia. 402, 65 N. W. 1340; Johns v. Northwestern Mut.

Relief Ass'n (1894), 87 Wis. 111, 58 N. W. 76; Moore v. Halliday (1903), 43 Ore. 243, 72 Pac. 801. But a failure to allege that they are separate is not ground for demurrer: Gunderson v. Thomas (1894), 87 Wis. 406, 58 N. W. 750.

"If any one count of a petition or any separate defence set up in an answer is adjudged insufficient, such ruling does not affect the other counts of the petition or the other separate defences:" Munford v. Keet (1900), 154 Mo. 36, 55 S. W. 271.]

3 [In McKay v. McDougal (1897), 19 Mont. 488, 48 Pac. 988, the court said:

however, applies only to the material and issuable facts which constitute the cause of action. Matter which is simply introductory or by way of inducement, and not part of the gravamen, after having been once set out at the commencement of the pleading, need not be repeated in each paragraph, but should be referred to merely. And this introductory matter includes all descriptions of the character, capacity, or particular right in respect of which the plaintiffs and defendants are made parties to the action, as executors, trustees, public officers, and the like. These and similar statements properly form the commencement or introduction of the complaint, distinct from the several causes of action, and equally applicable to all of them. Whenever, therefore, a cause of action is attacked by a demurrer directed either against it alone or against the entire pleading, it must stand or fall by its own averments, and cannot be helped out by any facts, however sufficient in themselves, alleged in another paragraph or count. But the particular sum of damages claimed

"Each separate division or count of the complaint must be complete in itself, and the pleader, by merely referring to material facts properly set forth in a former count, cannot incorporate them into and make them part of a subsequent one. This rule should not be extended to the inclusion of a description of the property itself, nor to a point requiring exhibits to be repeated, but it should be held to embrace those material and issuable facts of ownership which constitute the plaintiff's action."

In support of this view, see Cooper v. Portner Brewing Co. (1900), 112 Ga. 894, 38 S. E. 91; Aulbach v. Dahler (1896), Idaho, 43 Pac. 322; Corbey v. Rogers (1898), 152 Ind. 169, 52 N. E. 748.

But in other States it is held that material facts alleged in one count may be made a part of another count by appropriate reference. To this effect see Treweek v. Howard (1895), 105 Cal. 434, 39 Pac. 20; Hopkins v. Contra Costa Co. (1895), 106 Cal. 566, 39 Pac. 933; Ramsey v. Johnson (1897), 7 Wyo. 392, 42 Pac. 1084; Hutson v. King (1894), 95 Ga. 271, 22 S. E. 615; Realty Revenue, etc. Co. v. Farm, etc. Co. (1900), 79 Minn. 465, 82 N. W. 857. In this last case the court

held the allegation that " plaintiff realleges and reaffirms all the allegations of paragraphs 1, 2, and 3 of plaintiff's cause of action," a sufficient reference.]

1 Abendroth v. Boardley, 27 Wis. 555; Durkee v. City Bk. of Kenosha, 13 Wis. 216, 222; Curtis v. Moore, 15 Wis. 134; Sabin v. Austin, 19 Wis. 421, 423; Catlin v. Pedrick, 17 Wis. 88, 91; Barlow v. Burns, 40 Cal. 351, 353; Potter v. Earnest, 45 Ind. 416; Mason v. Weston, 29 Ind. 561; Day v. Vallette, 25 Ind. 42; Leabo v. Detrick, 18 Ind. 414; Nat. Bk. of Mich. v. Green, 33 Iowa, 140 (answer); Silvers v. Junction R. Co, 43 Ind. 435, 446 (reply). See also Scott v. Robards, 67 Mo. 289; State v. Yellow Jacket S. Min. Co., 14 Nev. 220; Birdsall v. Birdsall, 52 Wis. 208; McCarnan v. Cochran, 57 Ind. 106; Killian v. Eigenman, 57 id. 480; Barnes v. Stephens, 62 id. 226; Pennsylvania Co. v. Holderman, 69 id. 18; Haskell v. Haskell, 54 Cal. 262; Sharp v. Miller, 54 id. 329; see also Jasper v. Hazen, 2 N. Dak. 401; Neier v. Missouri Pac. Ry. Co., 12 Mo. App. 35; Aull Sav. Bk. v. Lexington, 74 Mo. 104; Boeckler v. Mo. Pac. Ry. Co., 10 Mo. App. 448; Farris v. Jones, 112 Ind. 498; Bidwell v. Babcock, 87 Cal. 29; Yost v. Commercial Bk. of Santa Ana, 94 Cal. 494; Green v. Clifford, 94 Cal. 49;

in each cause of action need not necessarily be given at its close; it is sufficient if the aggregate amount is alleged and demanded at the end of the complaint.1

§ 467. *576. Rule as to Statement of Same Cause of Action in Different Counts. Since the reformed pleading requires the facts to be averred as they actually took place, it does not in general permit a single cause of action to be set forth in two or more different forms or counts, as was the familiar practice at the common law. The rule is undoubtedly settled, that, under all ordinary circumstances, the plaintiff who has but one cause of action will not be suffered to spread it upon the record in differing shapes and modes, as though he possessed two or more distinct demands; and when he does so without special and sufficient reason, he will be compelled, either by a motion before the trial or by an application and direction at the trial, to select one of these counts, and to abandon the others.2 It is certain that different causes of action in the complaint or petition must, as

Pennie v. Hildreth, 81 Cal. 127; but see St. Louis Gas Light Co. v. St. Louis, 86 Mo. 495. As to what are not separate causes of action, so that they may be stated in one count, see Rayan v. Day, 46 Iowa, 239 (two promissory notes, sed qu.); State v. Milwaukee, L. S. & W. Ry. Co., 45 Wis. 579 (distinct grounds of forfeiture).

1 Spears v. Ward, 48 Ind. 541; Blanchard v. Jefferson, 28 Abb. N. Cas. 236.

[It is held in Connecticut that good pleading requires the claim or claims for relief, no matter how many counts there may be, to be set out at the end of the entire complaint: Goodrich v. Stanton (1899), 71 Conn. 418, 42 Atl. 74; Baxter v. Camp (1898), 71 Conn. 245, 41 Atl. 803. In support of the rule stated in the text see H. B. Claflin Co. v. Simon (1898), 18 Utah, 153, 55 Pac. 376.]

2 [In support of this proposition, see Reed v. Poindexter (1895), 16 Mont. 294, 40 Pac. 596; Leonard v. Roberts (1894), 20 Colo. 88, 36 Pac. 880; Bassett v. Shares (1893), 63 Conn. 39, 27 Atl. 421; Palmer v. Hartford Dredging Co. (1900), 73 Conn. 182, 47 Atl. 125; Finken v. Elm City Brass Co. (1900), 73 Conn. 423, 47 Atl. 670; Brown v. Wilcox (1900), 73 Conn. 100, 46

Atl. 827; Goodrich v. Stanton (1899), 71 Conn. 418, 42 Atl 74; Freeman's Appeal (1899), 71 Conn. 708, 43 Atl. 185; Oley v. Miller (1901), 74 Conn. 304, 50 Atl. 744; Wehmhoff v. Rutherford (1895), 98 Ky. 91, 32 S. W. 288.

The practice of setting out the facts in different form in the several counts to meet the exigencies of proof, has been held proper in the following cases: Estrella Vineyard Co. v. Butler (1899), 125 Cal. 232, 57 Pac. 980; Rucker v. Hall (1895), 105 Cal. 425, 38 Pac. 962; Bernstein v. Downs (1896), 112 Cal. 197, 44 Pac. 557; Stockton, etc. Works v. Glens Falls Ins. Co. (1898), 121 Cal. 167, 53 Pac. 565; Rinard v. Omaha, etc. Ry. Co. (1901), 164 Mo. 270, 64 S. W. 124; Willard v. Carrigan (1902), Ariz., 68 Pac. 538; Armstrong v. Penn (1898), 105 Ga. 229, 31 S. E. 158; Cawker City Bank v. Jennings (1893), 89 Ia. 230, 56 N. W. 494.

Cawker City Bank v. Jennings (1893), 89 Ia. 230, 56 N. W. 494: The first count of plaintiff's petition declared on a promissory note executed by defendant to plaintiff. The second count expressly purported to set up the same cause of action, and declared on money advanced and loaned to the defendant. Held, that the second

a general rule, imply as many distinct causes of action actually held or claimed to be held by the plaintiff. It cannot be said, however, that this rule is absolutely inflexible. As it is one of

convenience simply, it must sometimes yield to the demands of justice and equity. Under peculiar circumstances, when the exact legal nature of the plaintiff's right and of the defendant's liability depends upon facts in the sole possession of the defendant, and which will not be developed until the trial, the plaintiff may set forth the same single cause of action in varied counts and with differing averments, so as to meet the possible proofs which will for the first time fully appear on the trial. This proposition is plainly just and right, and is sustained by the authority of able courts.2

§ 468. * 577. Effect of Demurring to Entire Complaint when Made up of Several Counts. Joint Demurrers by Two or More Defendants. When a complaint or petition contains two or more distinct causes of action, a demurrer to it as a whole, or to all or some of the causes of action jointly, must fail and be overruled if any one of the separate causes of action included in the demurrer is good; and the same rule applies to separate defences in an answer.3 The defendant should never demur to an entire com

Where two causes of action are identical, the remedy is not a motion for an election but a motion to strike out as surplusage: Pollock v. Whipple (1895), 45 Neb. 844, 64 N. W. 210.]

count did not set up a new cause of in his complaint two distinct causes of action. action (1) against the defendant as a common carrier, and (2) against defendant as a warehouseman - for the negli gent loss of the goods. This manner of pleading was held proper under the circumstances, and the plaintiff could not be compelled to elect on the trial. The subject is exhaustively discussed by Dixon C. J., pp. 340-342. See also Smith v. Douglass, 15 Abb. Pr. 266; Jones v. Palmer, 1 Abb. Pr. 442. And as further examples, Van Brunt v. Mather, 48 Iowa, 503; Pearson v. Milwaukee, etc. R. Co., 45 id. 497; La Pointe T. Sup. v. O'Malley, 46 Wis. 35; Brinkman v. Hunter, 73 Mo. 172; Cramer v. Oppenstein, 16 Colo. 504; Manders v. Craft (Colo. App. 1893), 32 Pac. Rep. 836; Plummer v. Mold, 22 Minn. 15; Hawley v. Wilkinson, 18 Minn. 525.

1 Sturges v. Burton, 8 Ohio St. 215; Muzzy v. Ledlie, 23 Wis. 445; Lackey v. Vanderbilt, 10 How. Pr. 155; Nash v. McCauley, 9 Abb. Pr. 159; Sipperly v. Troy & B. R. Co., 9 How. Pr. 83; Hillman v. Hillman, 14 How. Pr. 456; Churchill v. Churchill, 9 How. Pr. 552; Ford v. Mattice, 14 How. Pr. 91; Dunning v. Thomas, 11 How. Pr. 281; Bishop v. Chicago & N. W. Ry. Co., 67 Wis. 610.

2 Whitney v. Chicago & N. W. Ry. Co., 27 Wis. 327, 340-342. The plaintiff had shipped wool on defendant's road for Chicago, and it was never delivered. He did not know whether it had been lost in the transit, or had been burned at a fire which had consumed defendant's warehouse in Chicago. He therefore set forth

8 Curtis v. Moore, 15 Wis. 134; Jeffersonville, M. & I. R. Co. v. Vancant, 40 Ind. 233; Heavenridge v. Mondy, 34 Ind. 28; Hale v. Omaha Nat. Bank, 49 N. Y.