plaint or petition consisting of several distinct causes of action, nor to two or more causes of action jointly, unless he is certain that they are all insufficient; and, under all circumstances, it is the better and safer practice to demur in express terms to each separately, for each will then stand or fall upon its own merits.1 The same rule also applies to a demurrer for want of sufficient facts by two or more defendants jointly; it will be overruled as to all who unite in it if the complaint or petition states a good 626, 630; Ward v. Guyer, 3 N. Y. S. C. 58; Alexander v. Thacker, 30 Neb. 614; Pinkum v. Eau Claire, 81 Wis. 301; Silvers v. Junction R. Co., 43 Ind. 435, 442, 445. In the last case the question arose on a reply which contained several paragraphs or defences. The defendant demurred as follows: "Now comes the defendant and demurs to the second, third, and fourth paragraphs of the plaintiff's reply, upon the following grounds: First, said second paragraph does not state facts sufficient, etc.; second, said third paragraph does not state facts, etc.; third, said fourth paragraph does not," etc. This demurrer was held to be joint, and not several; and the rule of the text was enforced. The opinion carefully discusses the question, what language makes a demurrer or an answer joint, and what several, citing on this topic Lane v. State, 7 Ind. 426; Barner v. Morehead, 22 Ind. 354; Jewett v. Honey Creek Draining Co., 39 Ind. 245; Parker v. Thomas, 19 Ind. 213; Fankboner v. Fankboner, 20 Ind. 62; Aiken v. Bruen, 21 Ind. 137; Hume v. Dessar, 29 Ind. 112. The following cases are further illustrations of both branches of the rule, -a demurrer to all the causes of action or defences, and a demurrer by the defendants jointly: Collier v. Erwin, 2 Mont. 335; Dann v. Gibson, 9 Neb. 513; Hyde v. Kenosha Cy. Sup, 43 Wis. 129; American Button-hole, etc. Co. v. Gurnee, 44 id. 49; Lamon". Hackett, 49 id. 261; Schiffer v. Eau Claire, 51 id. 385; Stanford v. Davis, 54 Ind. 45; Wilkerson v. Rust, 57 id. 172; Romine v. Romine, 59 id. 346; Price v. Sanders, 60 id. 310; Carter v. Zenblin, 68 id. 436; Farman v. Chamberlain, 74 id. 82; Shafer v. State, 49 id. 460, and cases cited; Kelsey v. Henry, 48 id. 37. [Raymond v. Wathen (1895), 142 Ind. 367, 41 N. E. 815; Palmer v. Breed (1896), Ariz., 43 Pac. 219; Mayor v. Smith (1900), 111 Ga. 870, 36 S. E. 955; Harris County v. Brady (1902), 115 Ga. 767, 42 S. E. 71; Pryor v. Brady (1902), 115 Ga. 848, 42 S. E. 223; Kearney Stone Works v. McPherson (1894), 5 Wyo. 178, 38 Pac. 920; Florence v. Pattillo (1898), 105 Ga. 577, 32 S. E. 642; Brake v. Payne (1893), 137 Ind. 479, 37 N. E. 140; Rownd v. State (1898), 152 Ind. 39, 51 N. E. 914; A. E. Johnson Co. v. White (1899), 78 Minn. 48, 80 N. W. 838; Barbre v. Goodale (1896), 28 Ore. 465, 43 Pac. 378; Asevado v. Orr (1893), 100 Cal. 293, 34 Pac. 777; Hurst v. Sawyer (1894), 2 Okla. 470, 37 Pac. 817; Hanenkratt v. Hamil (1900), 10 Okla 219, 61 Pac. 1050; Carter v. Wann (1899), Idaho, 57 Pac. 314; Corns v. Clouser (1893), 137 Ind. 201, 36 N. E. 848; Lake Erie & W. R. R. Co. v. Charman (1903), Ind., 67 N. E. 923. It was held in Maynard v. Waidlich (1900), 156 Ind. 562, 60 N. E. 348, that a demurrer as follows: "The defendant, Harriet Maynard, demurs to the second, third, and fourth paragraphs of plaintiff's reply to the second paragraph of the answer of the said defendant, and says that neither of said paragraphs of said reply states facts sufficient to avoid said answer," is joint and not several.] 1 Durkee v. City Bk. of Kenosha, 13 Wis. 216, 222; Terre Haute & L. R. Co. v. Sherwood, 132 Ind. 129; Glass v. Murphy (Ind. App. 1892), 30 N. E. Rep. 1097. [But a demurrer does not lie to a single paragraph of a complaint unless it purports to present a complete cause of action: Lowman v. West (1894), 8 Wash. 355, 36 Pac. 268.] cause of action against even one of them.1 A different rule, however, prevails in some States.2 § 469. *578. Admission by Failure to deny. It is expressly provided in all the codes, that material allegations of the complaint or petition not controverted by the answer are admitted, and they need not be proved; the same is of course true of averments expressly admitted. A denial of the legal conclusion, such as the indebtedness, while the answer is silent with respect to the issuable facts from which the conclusion follows, is a mere nullity, and raises no issue. What averments are material, and are thus admitted unless controverted, is a question of law to be decided by the court, and not by the jury. The result just mentioned does not arise from a failure to deny immaterial allegations; such statements are not issuable, and their truth is not conceded for the purposes of the trial by the defendant's neglect 1 McGonigal v. Colter, 32 Wis. 614; Webster v. Tibbits, 19 Wis. 438; Shore v. Taylor, 46 Ind. 345; Owen v. Cooper, 46 Ind. 524. See also Benedict v. Farlow, Ind. App. 160; Conant v. Barnard, 103 N. C. 315; Murdock v. Cox, 118 Ind. 266. [Hirsheld v. Weill (1898), 121 Cal. 13, 53 Pac. 402; Dalrymple v. Security Loan Co. (1900), 9 N. D. 306, 83 N. W. 245; Mark Paine Lumber Co. v. Improvement Co. (1896), 94 Wis. 322, 68 N. W. 1013; Miller v. Rapp (1893), 135 Ind. 614, 34 N. E. 981; Frankel v. Garrard (1903), Ind. 66 N. E. 687; Evans v. Fall River County (1896), 9 S. D. 130, 68 N. W. 195; Palmer v. Bank of Zumbrota (1896), 65 Minn. 90, 67 N. W. 893; Burr v. Brantley (1893), 40 S. C. 538, 19 S. E. 199; Stahn v. Catawba Mills (1898), 53 S. C. 519, 31 S. E. 498; Asevado v. Orr (1893), 100 Cal. 293, 34 Pac. 777; Rogers v. Schulenburg (1896), 111 Cal. 281, 43 Pac. 899, citing the text; Stiles v. City of Guthrie (1895), 3 Okla. 26, 41 Pac. 383; Neal v. Bleckley (1897), 51 S. C. 506, 29 S. E. 249. And similarly, a joint motion, if not good as to all, should be dismissed: Leonhardt v. Citizens' Bank (1898), 56 Neb. 38, 76 N. W. 472; Cortelyou v. McCarthy (1898), 53 Neb. 479, 73 N. W. 921; Carson e. Fears (1893), 91 Ga. 482, 17 S. E. 342. Where several defendants demur "jointly, as well as separately and sever ally, to the first, second, and third paragraphs of the complaint, and to each of them separately," held, that it is a separate demurrer as to the paragraphs of the complaint but joint as to the parties, citing Carver v. Carver, 97 Ind. 497: Armstrong v. Dunn (1895), 143 Ind. 433, 41 N. E. 540. A separate demurrer by one of several joint defendants must be considered as though the demurrant were the sole defendant: Frankel v. Garrard (1903), — Ind. 66 N. E. 687; Cummings v. Town of Lake Realty Co. (1893), 86 Wis. 382, 57 N. W. 43] 2 Wood v. Olney, 7 Nev. 109. The demurrer was sustained as to some, and overruled as to the others. 8 Skinner v. Clute, 9 Nev. 342; Jenkins v. N. C. Ore Dressing Co., 65 N. C. 563. See also Trapnall v. Hill, 31 Ark. 345; Mohr v. Barnes, 4 Col. 350; Dole v. Burceigh, 1 Dak. 227; Kansas City Hotel Co. v. Sauer, 65 Mo. 279; Bonham v. Craig, 84 N. C. 224; Bensley v. McMillan, 49 Iowa, 517; Alston v. Wilson, 44 id. 130; Fellows v. Webb, 43 id. 133; Blake v. Johnson Cy. Com'rs, etc., 18 Kan. 266; Wands v. School Dist., 19 id. 204; Murray v. N. Y. L. Ins. Co., 85 N. Y. 236, 239; Lange v. Benedict, 73 id. 12; Marsh v. Pugh, 43 Wis. 507; Tracy v. Craig, 55 Cal. 91. 4 Becker v. Crow, 7 Bush, 198. to controvert them. In this class are included all species of immaterial and non-issuable matter, such as details of evidence, conclusions of law, and averments of time, place, value, amount, and the like, in all ordinary circumstances. An important question presents itself in this connection as to the effect of a qualified admission contained in the defendant's answer, and the decisions in respect to it are somewhat conflicting. The rule is settled by one group of cases, that when the answer expressly admits certain material averments of the complaint or petition, but at the same time accompanies this concession with the statement of affirmative matter in explanation and qualification by the way of defence, the plaintiff may avail himself of the admissions without the qualifications; he is not bound to take the defendant's entire statement; he is freed from the necessity of proving: his own averments that are admitted, while the defendant must prove those which he sets up.2 Other cases seem to lay down a different rule, denying to the plaintiff the full benefit of the admission, and requiring him to accept it, if at all, with the defendant's qualifying matter. When different defendants have put in separate answers, an admission by one cannot be used against the others; and the same doctrine extends to separate defences of one party in a single answer; the admissions in a defence of confession and avoidance do not overcome the effect of a denial contained in another.5 Answer. * § 470. 579. Defective Complaint Aided by Averments in A defective complaint or petition may be supplemented, and substantial issues may thus be presented by the answer itself. When the plaintiff has failed to state material 1 Doyle v. Franklin, 48 Cal. 537, 539; Gates v. Salmon, 46 Cal. 361, 379 (evidence); Chicago & S. W. R. Co. v. N. W. U. Packet Co., 38 Iowa, 377, 382 (value of goods); People v. Marlboro' H. Com'rs, 54 N. Y. 276, 279 (conclusion of law). See also Sands v. St. John, 36 Barb. 628; 23 How. Pr. 140; Fry v. Bennett, 5 Sandf. 54: Newman v. Otto, 4 Sandf. 668; Oechs v. Cook, Duer, 161; Harlow v. Hamil ton, 6 How. Pr. 475; Connoss v. Meir, 2 E. D. Smith, 314; Mayor, etc. of Albany v. Cunliff, 2 N. Y. 165, 171. 2 Dickson v. Cole, 34 Wis. 621, 626, 627; Sexton v. Rhames, 13 Wis. 99; Hartwell v. Page, 14 Wis. 49; Orton v. Noonan 19 Wis. 350; Farrell v. Hennesy, 21 Wis. 632. 8 Troy & R. R. Co. v. Kerr, 17 Barb. 581. As to the effect of admissions, see also Simmons v. Law, 8 Bosw. 213; 3 Keyes, 217; Paige v. Willett, 38 N. Y. 31; Tell v. Beyer, 38 N. Y. 161; Robbins v. Codman, 4 E. D. Smith, 325. 4 Swift v. Kingsley, 24 Barb. 541; Troy & R. R. Co. v. Kerr, 17 Barb. 581, 599. 5 Vassear v. Livingston, 13 N. Y. 256; 4 Duer, 285; Ayres v. Covill, 18 Barb. 264; 9 How. Pr. 573. 6 [State ex rel. v. Thum (1898), Idaho, 55 Pac. 858. But a complaint demurred facts, so that no cause of action is set forth, but these very facts are supplied by the averments of the answer, the omission is immaterial, and the defect is cured.1 This rule should properly be confined to the case where the answer affirmatively alleges the very fact that is missing from the complaint; 2 but it has in some instances been enforced, although the answer simply contained a denial of the necessary fact which should have been averred by the plaintiff. A statement in the reply, however, of a fact which to ore tenus at the trial cannot be aided by the answer: Wisconsin Lakes Ice Co. v. Ice Co. (1902), 115 Wis. 377, 91 N. W. 988. In Shute v. Austin (1897), 120 N. C. 440, 27 S. E. 90, the court said: "The doctrine of aider can only be invoked in aid of a defective statement of a good cause of action; but cannot be used to aid the statement of a bad or defective cause of action." See also Harrison v. Garrett (1903), 132 N. C. 172, 43 S. E. 594. 1 [Ricketts v. Hart (1899), 150 Mo. 64, 51 S. W. 825; Doerner v. Doerner (1901), 161 Mo. 407, 61 S. W. 802; Casler v. Chase (1901), 160 Mo. 418, 60 S. W. 1040; Og den v. Ogden (1894), 60 Ark. 70, 28 S. W. 796; Ware v. Long (1902), Ky., 69 S. W. 797; Louisville, etc. R. R. Co. v. Pittman (1901), Ky., 64 S. W. 460; Daggett v. Gray (1895), 110 Cal. 169, 42 Pac. 568; Shively v. Semi-Tropic Land Co. (1893), 99 Cal. 259, 33 Pac. 848, quoting the text; Crowder v. McDonnell (1898), 21 Mont. 367, 54 Pac. 43; Beebe v. Latimer (1899), 59 Neb. 305, 80 N. W. 904; Hess v. Adler (1900), 67 Ark. 444, 55 S. W. 843; Railway Officials, etc. Ass'n v. Drummond (1898), 56 Neb. 235, 76 N. W. 562. Where a material fact is omitted from a complaint, and such fact is found in a special finding, this will not cure the complaint: Goodwine v. Cadwallader (1901), 158 Ind. 202, 61 N. E. 939; Cleveland, etc. Ry. Co. v. Parker (1899), 154 Ind. 153, 56 N. E. 86. Where a complaint states facts only inferentially, an admission of such facts in the answer will be considered, for jurisdictional purposes, in aid of the complaint: Lockhart v. Bear (1895), 117 N. C. 298, 23 S. E. 484. Where defendant, by its answer, shows that it understands the nature of a claim set forth defectively in the complaint, there is no reason why it should be surprised or injured by trying the issues raised by the pleadings: Whiteley v. Southern Ry. Co. (1896), 119 N. C. 724, 25 S. E. 1018.] 2 [In Vanalstine v. Whelan (1901), 135 Cal. 232, 67 Pac. 125, a material averment was omitted in the complaint, and a denial of the said omitted averment was contained in the answer. It was claimed by the plaintiff that the defect was cured by the answer. The court said: "The principle is, that an omission of a material fact is cured by the express averment of that very fact in the defendant's pleadings. But there is nothing of the kind in the case at bar. The contention of respondent rests on the fact that defendants, in their answers, say, among other things, that the plaintiff was not the owner or entitled to the possession of the goods at the time alleged in the complaint, or at any other time,' which, it is said, included the time of the commencement of the action. But that is the very converse of the averment which respondent ought to have made in his complaint, - namely, that at the time of the commencement of the action he was the owner, etc. The judg ment must therefore be reversed for the insufficiency of the complaint.' See also Windsor v. Miner (1899), 124 Cal. 492, 57 Pac. 386. Both these cases seem at variance with Vance v. Anderson (1896), 113 Cal. 532, 45 Pac. 816. In Nye v. Bill Nye Mining Co. (1903), 42 Ore. 560, 71 Pac. 1043, it was held that an answer consisting of specific denials only cannot aid a complaint.] 8 Dayton Ins. Co. v. Kelley, 24 Ohio St. 345, 357; Miller v. White, 6 N. Y. S. C. 255; Garrett v. Trotter, 65 N. C. 430, 432; Bate v. Graham, 11 N. Y. 237 ; Louisville & P. Canal Co. v. Murphy, 9 Bush, 522, 529 (a simple denial in tho ought to have been alleged in the complaint or petition, is not sufficient, and does not cure the defect. 1 3 § 471.580. Prayer for Relief.2 The prayer for relief is generally regarded as forming no part of the cause of action, and as having no effect upon it, and as furnishing no test or criterion answer); but see Scofield v. Whitelegge, 49 N. Y. 259, 261, which expressly holds that a denial merely in the answer is not sufficient; Shartle v. Minneapolis, 17 Minn. 308, 312. See also De la Mar v. Hurd, 4 Col. 442; Herschfield v. Aiken, 3 Mont. 442; Haggard v. Wallen, 6 Neb. 271; Worthley's Adm. v. Hammond, 13 Bush, 510; Quaid v. Cornwall, 13 id. 601; Howland Coal, etc. Works v. Brown, 13 id. 681; Grigsby v. Barr, 14 id. 330; Pearce v. Mason, 78 N. C. 37; Goff v. Outagamie Cy. Sup., 43 Wis. 55; Kretser v. Carey, 52 id. 374; Wiles v. Lambert, 66 Ind. 494; Allen v. Chouteau, 102 Mo. 309; Donaldson v. Butler Cy., 98 Mo. 163; Henry v. Sneed, 99 Mo. 407; Cohen v. Knox, 90 Cal. 266; Hegard v. Cal. Ins. Co. (Cal., June, 1886), 11 Pac. Rep. 594; Schenk v. Hartford F. Ins. Co., 71 Cal. 28; Cohu v. Husson, 113 N. Y. 662; Sengfelder v. Mut. Ins. Co. of N. Y., Pac. Rep. (Wash., 1893) 428. 31 [Vance v. Anderson (1896), 113 Cal. 532, 45 Pac. 816; City of Louisville . Snow's Adm'r (1900), 107 Ky. 536, 54 S. W. 860; Main v. Ray (1900), Ky., 57 S. W. 7; Western Union Tel. Co. v. Parsons (1903), Ky., 72 S. W. 800. An answer which assumes that the complaint contains an allegation, supplies the omis sion of it: Lynch v. Bechtel (1897), 19 Mont. 548, 48 Pac. 1112. And where a complaint is merely ambiguous, an answer which clears up the ambiguity cures the defect: Hamilton v. Great Falls Ry. Co. (1895), 17 Mont. 334, 42 Pac. 860.] 1 Webb v. Bidwell, 15 Minn. 479, 485. [But where plaintiff omitted certain essential allegations from his petition, and defendant alleged the absence of such omitted facts, and plaintiff filed a reply denying the averments of the answer, an issue was thereby raised as to the omitted facts: Chesapeake & Ohio R. R. Co. v. Thieman (1895), 96 Ky. 507, 29 S. W. 357. So, also, a reply may aid a defective coun [Farwell Co. v. Lykins (1898), 59 Kan. 96, 52 Pac. 99] [The relief to be granted depends upon the facts alleged and proved and not upon the prayer for relief: Dennison v. Chapman (1895), 105 Cal. 447, 39 Pac. 61; Rutenic v. Hamaker (1902), 40 Ore. 444, 67 Pac. 192; Hendon v. North Carolina R. R. Co. (1900), 127 N. C. 110, 37 S. E. 155; Adams v. Hayes (1897), 120 N. C. 383, 27 S. E. 47; Gillam v. Life Ins. Co. (1897), 121 N. C. 369, 28 S. E. 470; Stubblefield v. Gadd (1901), 112 Ia. 681, 84 N. W. 917; McClure v. La Plata County (1896), 23 Colo. 130, 46 Pac. 677; Miller v. Rapp (1893), 135 Ind. 614, 34 N. E. 981; State. ex rel. v. Horton, etc. Co. (1901), 161 Mo. 664, 61 S. W. 869; Sherrin v. Flinn (1900), 155 Ind. 422, 58 N. E. 549; French v. Woodruff (1898), 25 Colo. 339, 54 Pac. 1015; Johnson v. Polhemus (1893), 99 Cal. 240, 38 Pac. 908 (in an equity case); Kleinschmidt v. Steele (1894), 15 Mont. 181, 38 Pac. 827 (in an equity case); State ex rel. v. Tooker (1896), 18 Mont. 540, 46 Pac. 530 (in an equity case); Toy v. McHugh (1901), 62 Neb. 820, 87 N. W. 1059; Topping v. Parish (1897), 96 Wis. 378, 71 N. W. 367. : A general prayer for relief is sufficient to warrant the court in granting any relief consistent with the pleadings and evidence Mackay v. Smith (1902), 27 Wash. 442; 67 Pac. 982; Dormitzer v. German Savings Bank (1900), 23 Wash. 132, 62 Pac. 862; Yarwood v. Johnson (1902), 29 Wash. 643, 70 Pac. 123; Kelley v. Wehn (1902), 63 Neb. 410, 88 N. W. 682; Rees v. Shepherdson (1895), 95 Ia. 431, 64 N. W. 286 (in an equity case); Hession v. |