guage is certainly inaccurate, and unnecessarily confuses a subject which is in itself not free from difficulty. It is, beyond a doubt, true, that if the answer or other pleading is defective in such a manner, and to such an extent only, that the proper method of correction is a motion to make it more definite and certain, and if the adverse party omits to make the motion, but goes to trial, he thereby waives the objection, and cannot raise it by attempting to shut out evidence of the cause of action or defence. But if the defect is of such a nature that a demurrer is proper, and the pleading would be held insufficient upon a demurrer, it is equally certain that the adverse party does not waive the objection by going to trial without demurring. If the pleading was a com plaint or petition, the ground of demurrer would necessarily be, that it did not state facts sufficient to constitute a cause of action; and, by an express provision of all the codes, this ground is not waived by answering and going to trial. If the pleading was an answer, the ground of demurrer would still be that the facts stated did not constitute a defence or counter-claim; and if it did not, in fact, allege a defence or counter-claim none could be proved under it at the trial.2 The rule, with its proper limitations, is a correct one, and operates in the interests of justice and good faith; but if acted upon in the broad manner as above recited, it would tend to destroy all certainty and accuracy in pleading. If the deficiencies are such that a motion is the proper mode of cure, they are necessarily of form, and not of substance; the adverse party is not in fact misled; and a neglect on his part to apply the remedy in an early stage of the cause ought to be and is a waiver of all objection, so that the cause of action or defence, as the case may be, can be proved, notwithstanding the ambiguity and indefiniteness of the averments. § 489. * 598. Same Subject. Adopting the rule in this restricted scope, there are still cases of doubt and of conflict in its application. In some answers a defect of substance is plain; to a legal defence." Citing Conger v. Crabtree, 83 Ia. 536, 55 N. W. 335; Linden v. Green, 81 Ia. 365, 46 N. W. 1108; Benjamin v. Veith, 80 Ia. 149, 45 N. W. 731.] 1 [See note on Waiver of Defects of Substance, p. 605. But see also Wilson v. Aberdeen (1901), 25 Wash. 614, 66 Pac. 95; Klotz v. James (1896), 97 Ia. 337, 66 N. W. 190.] 2 [See Wintrode v. Renbarger (1898), 150 Ind. 556, 50 N. E. 570, where it was held that a demurrer on the ground that facts were not stated "sufficient to constitute a good answer to the complaint of the plaintiff" does not raise the question of the sufficiency of the answer to state a defence.] the facts alleged clearly constitute no defence: in others the deficiencies are as plainly formal; the necessary facts are all mentioned; no doubt can exist as to the actual intent and meaning, but still some requirements as to form and method have not been complied with. Between these two extremes there are cases bordering upon the dividing-line, in which it is difficult to determine with certainty whether the defect is one of form merely, or whether it passes the limit, and is one of substance. In such instances we shall naturally find a conflict of decision among different judges, and we shall even discover the same court vacillating, in one case applying the liberal doctrine and holding the objection waived, and, in another not essentially different, enforcing the stricter rule, pronouncing the answer entirely bad, and wholly rejecting it. In some of the decisions to which I shall refer, it would seem that able courts have neglected their own precedents, and forgotten the rule imposed upon them by the statute, which abrogates the inequitable commonlaw doctrine of an interpretation adverse to the pleader, and requires a liberal construction with a view to substantial justice between the parties. It is only by a comparison and analysis of these decisions that a practical result can be reached, and a general principle deduced; and I shall therefore cite, either in the text or in the notes, the leading cases which have passed upon this important question. § 490. * 599. Defects of Form are Curable by Motion. The authorities are uniform that a mere defect of form, as it has been already described, must be cured by a motion, and not by a demurrer. In an action to foreclose a purchase-money mort 1 [General Rules as to Motions. The determination of a motion is not res judicata, so as to prevent parties from drawing the same matters in question again in an action: Heidel . Benedict (1894), 61 Minn. 170, 63 N. W. 490. The test as to whether the ruling on a motion is appealable before judgment is this: "Does the part of the pleading assailed show a distinct cause of action, or is it a mere incident thereto ? Does the ruling go to the plaintiff's right to recover, or merely to the amount of his recovery on a ground otherwise pleaded? If the order relates to the former, it is appealable. If to the latter, it can only be considered on appeal from the final judgment." Allen v. Church (1897), 101 Ia. 116, 70 N. W. 127. A motion to strike out a pleading and the ruling of the court thereon can only be made a part of the record by bill of exceptions or by order of court: Allen v. Hollingshead (1900), 155 Ind. 178, 57 N. E. 917. A pleading which sets up the proper facts will be considered as a motion although not so designated: Waldo v. Thweatt (1897), 64 Ark. 126, 40 S. W. 782. Pleading over after a motion has been overruled waives objection to the ruling: gage of land conveyed by the plaintiff to the defendant, the answer set up covenants in the deed of conveyance, and a breach of them, namely, "that the plaintiff was not seised of the premises, as of a good and indefeasible estate in fee," etc., negativing all the covenants. To this the plaintiff replied, and instead of averring "that he was seised," etc., said, "And the plaintiff denies that at the time, etc., he was not seised in fee of the said premises," etc., and in this manner met all the allegations of the answer. The defendant demurred for insufficiency. It was held by the court that "insufficiency" as a ground of demurrer implies that the allegations do not constitute any defence or denial to the adverse pleading. The insufficiency relates to the substance of the averments as a whole, rather than to the form of the expression. The reply in this case was defective in form, but the substance thereof was good; that is, it stated a denial in an improper manner, and the remedy therefor was not by demurrer, but by motion to render the allegations more definite and certain.1 Although this decision was made in reference to a reply, the principle applies equally to an answer. Walser v. Wear (1897), 141 Mo. 443, 42 A motion which cannot be sustained substantially as made must be overruled: Palmer v. Bank of Ulysses (1899), 59 Neb. 412, 81 N. W. 303; First Nat. Bank v. Engelbercht (1899), 58 Neb. 639, 79 N. W. 556; Dobry . Western Mfg. Co. (1899), 58 Neb. 667, 79 N. W. 559; Draper v. Taylor (1899), 58 Neb. 787, 79 N. W. 709; Hudelson v. First Nat. Bank (1898), 56 Neb. 247, 76 N. W. 570; Beebe v. Latimer (1899), 59 Neb. 305, 80 N. W. 904. A motion to strike another motion is not proper practice: German Savings Bank v. Cady (1901), 114 Ia. 228, 86 N. W. 277; Long v. Ruch (1897), 148 Ind. 74, 47 N. E. 156; Bonfoy v Goar (1894), 140 Ind. 292, 39 N. E. 56. Nor is it proper to demur to a motion: Bonfoy v. Goar (1894), 140 Ind. 292, 39 N. E. 56.] 1 Flanders v. McVickar, 7 Wis. 372, 377. See, to the same effect, Spence v. Spence, 17 Wis. 448, 454; Hart v. Craw ford, 41 Ind. 197; Snowden v. Wilas, 19 Ind. 10; Fultz v. Wycoff, 25 Ind. 321; Phoenix v. Lamb, 29 Iowa, 352, 354; First Nat. Bk. of New Berlin v. Church, 3 N. Y. S. C. 10. The answer averred that defendant "had no knowledge or information thereto," which was held to be an improper form of denial; but the plaintiff's remedy was by motion, and the defect had been waived. Seeley v. Engell, 13 N. Y. 542, 548, per Denio J.: "The alleged mistake was set up in the answer, and denied by the reply. If the allegation in that respect was too general in its terms, the remedy of the plaintiff was by motion, under § 160, to compel the defendant to make it more certain." See also Stringfellow v. Alderson, 12 Kan. 112; Lathrop v. Godfrey, 6 N. Y. S. C. 96; Hutchings v. Castle, 48 Cal. 152; Jackson Sharp Co. v. Holland, 14 Fla. 384, 389; a fortiori such an answer cannot be objected to for the first time on appeal. Green Lake Sup. & Pac. Fuse Co., 46 Cal. 408. See also McCown v. McSween, 29 S. C. 130; Hagely v. Hagely, 68 Cal. 348. § 491. * 600. Defects of Form are waived by Neglect to move, and Going to Trial. Test of Formal Defects. That all objections of mere form to the answer are waived by a neglect to move, and by going to trial thereon, is sustained by numerous cases;1 and some of them apply the rule to answers in which the deficiencies were very considerable, even so great as to have rendered. the pleading demurrable in the opinion of the court pronouncing the decision. In White v. Spencer, which was an action for flowing plaintiff's lands, the answer set up facts showing a user and enjoyment by defendant of the easement for more than twenty years, but did not aver that this user was adverse. The plaintiff replied a general denial, and on his objection all evidence in support of the answer was excluded at the trial. On appeal from the judgment rendered in favor of the plaintiff, the New York Court of Appeals held that the user must be adverse, and that the plaintiff might have successfully demurred to the answer, because an averment of such adverse user was omitted; but that, by replying, and going to trial, he had waived the objection. Denio J. said: "I am of opinion that the plaintiff, having treated the allegation in the answer as a sufficient statement of defence by replying to it, and by going to trial without objection, is precluded from objecting to evidence to sustain it." He cited cases showing that the same rule prevailed under the old system, and added: "We have decided, it is true, that it is the duty of the judge on the trial to reject evidence offered in support of immaterial issues. But an issue is not immaterial, within the meaning of this rule, on account of the omission of some averment in a pleading which is essential to the full legal idea of the claim or defence which is attempted to be set up. If the court can see, as in this case, what the matter really attempted to be pleaded is, the issue is not immaterial, though it may be defectively stated." In this last sentence Mr. Justice Denio has given a very clear and accurate description of mere defects in form, which are waived by a neglect to 1 [See note on Imperfect, Incomplete, and Informal Allegations, p. 599. See also Barrett v. Baker (1896), 136 Mo. 512, 37 S. W. 130. “A bad answer is good enough for a bad complaint: Hiatt v. Town of Darlington (1898), 152 Ind. 570, 53 N. E. 825.] 251. 2 White v. Spencer, 14 N. Y. 247, 249, 3 Meyer v. McLean, 1 Johns. 509; 2 id. 183; Reynolds v. Lounsbury, 6 Hill, 534. Corning v. Corning, 6 N. Y. 97. . correct them by motion. Whether the principle was properly applied to the case before him, is, as it seems to me, more than questionable. The answer did not attempt to state an adverse user, and simply fail to state it with accuracy; it omitted any such averment entirely; it therefore set up no defence at all. When it is said that, if the court can plainly see what the matter really attempted to be pleaded is, the deficiency is formal, it is not intended that the court may be able, from their knowledge as lawyers and their experience as judges, to guess with reasonable certainty what the pleader designed; they must be able to gather from the legal import of the facts which are alleged — although improperly alleged the nature of the defence relied on; in other words, the substantial facts which constitute that defence must, in some manner, appear on the record. A defence of fraud could hardly be considered sufficient at the trial, from which all averments of the scienter had been omitted; and yet a fact was here wholly left out of the answer which was as essential in making up the defence as the guilty knowledge is to constitute the fraud. Although the reasoning of Mr. Justice Denio is admirable in its definition of the general rule, his conclusion cannot be reconciled with some subsequent decisions of the same court. § 492., *601. Case of Simmons v. Sisson. In Simmons v. Sisson, the subject was discussed at large both upon principle and upon authority. The reasoning of the court, and the 271. 1 Simmons v. Sisson, 26 N. Y. 264, The action was brought by the plaintiff, treasurer of a corporation, against the defendants, as stockholders. The complaint alleged that the plaintiff had, by order of the directors, advanced and expended a certain sum more than he had received from its funds, and that the corporation was indebted to him therefor. The answer contained two defences. 1. It denied that the corporation was indebted to the plaintiff in said sum, or in any other sum; 2. It alleged that the plaintiff had been directed by the corporation to expend the earnings thereof, and no more; that with knowledge of such direction, and of the amount of such earnings, he had expended more than said amount, contrary to the wishes and instructions of the corporation, and in his own wrong. On the trial, the referee held that this answer admitted the allegations of the complaint, that the plaintiff had expended the sum mentioned over and above the earnings, and had done this by order of the directors. On appeal from the judgment rendered in favor of the plaintiff, Selden J., who delivered the opinion of the court, declared that the first defence was the exact equiv alent of nil debet at the common law, and was a good general denial under the code, and then proceeded as follows: "But whether the preceding position is correct or not, it was too late to object at the close of the trial that this division of the answer did not put the fact of indebtedness in issue. Under the former system of pleading, nil debet to an action of debt on bond or judgment was bad on |