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S. C. R. 682. Anon. “ On an appeal from chambers the court decided that, on a motion to strike matter out of a pleading as irrelevant, redundarit, or frivolous, it would be governed by the consideration whether it was in any wise questionable as to the matter being good in point of law. If there were any reasonable doubt of the matter being pertinent, the court should put the party to his demurrer. In respect of matter palpably redundant or frivolous, the court will strike it out of course.” 26th Jan., 1850.
The same principles had been previously laid down by the same court in Corlies v. Delaplaine, 2 C. R. 117; 2 Sandf. S. C. R. 680.
In Williams v. Hayes, 5 How. 470, 1 C, R. (N. S.) 148, the views on this subject as taken in Carpenter v. West, are fully concurred in, and the qualifications of the doctrine in Hynds v. Griswold, assented to, by the learned judge who pronounced that decision. “ It is not every unnecessary expression or redundant sentence which should be expunged on motion. But where entire statements are introduced, upon which no material issue can be taken, the opposite party may be . aggrieved' by allowing them to remain in the pleading. If not answered, it may be claimed that such allegations are admitted, and, if denied, the record is embarrassed with immaterial issues. In such cases, it is the right of the adverse party to have the matter improperly inserted in the pleading removed, so that the record, when complete, shall present nothing but the issuable facts in the case. This I understand to be the true spirit and general policy of the system of pleading prescribed by the Code.” In a previous part of the opinion, the learned judge laid down the general criterion in such cases as being, whether the allegation “can be made the subject of a material issue. If it can, it has a right to be found in the pleadings; if not, it ought not to be there." See the same principles laid down in The Rensselaer and Washington Plank Road Company v. Wetsel, 6 How. 68, and Stewart v. Bouton, 6 How. 71 ; 9 L.O. 353; 1 C. R. (N. S.) 404.
The converse of this last proposition is laid down in Averill v. Taylor, 5 How. 476, where it was held that no part of a pleading ought to be stricken out, if it can in any event become material. A prayer for relief introduced into the answer in that case, was, on those grounds, refused to be stricken out. The plaintiff could not be prejudiced by it, inasmuch as it did not require a reply, and no issue could be taken on it.
In Fabricott v. Launitz, 3 Sandf. S. C. R. 743; 1 C. R. (N. S.) 121, before cited, irrelevant matter is defined to be, that “which has no bearing on the subject of the controversy, and cannot affect the decision of the court.” See also Bright v. Currie, 10 L. 0. 104.
Matter inserted merely for the purpose of enabling the plaintiff to obtain an injunction, was held to be irrelevant, and stricken out in Putnam v. Putnam, 2 C. R. 64. See also Milliken v. Cary, 5 How. 272 ; 3 C. R. 250: but these cases seem to be overruled by Wooden v. Wafle, Howard v. Tiffany, Minor v. Terry, and others before cited, in favor of the more liberal doctrine.
The same was also done by the superior court in Lee v. Elias, 3 Sandf. S. C. R. 736, 1 C. R. (N. S.) 116, with respect to averments of fraud, inserted in the complaint for the express purpose of grounding an arrest, under sec. 288. Considerable division of opinion had, however, previously prevailed on this point : as to which, see observations hereafter, under the heads of complaint and arrest. See, in particular, Masten v. Scovell, 6 How. 315, there cited.
An allegation that a party had unreasonably refused to make partition by deed, with a view to charge him with costs, was held to be irrelevant in MeGowan v. Morrow, 3 C. R. 9.
In The Stockbridge Iron Company v. Mellen, 5 How. 439, complaint against a common carrier, containing what amounted to the six different counts of a declaration under the old practice, was held to be clearly bad ; and, unless the plaintiff amended within twenty days, all the causes of action, except the first, were ordered to be stricken out as redundant or irrelevant. ; Although a defence may not be primâ facie sustainable, it does not necessarily follow that it can be stricken out as irrelevant : thus, in Hill v. McCarthy, 3 C. R. 49, the setting up an equitable title in an answer in ejectment, was refused to be stricken out, though the court considered that the defence was not sustainable, and that the defendant ought to maintain a separate suit. See prior observations on this last principle.
In Howard v. Tiffany, 3 Sandf. S. C. R. 695; 1 C. R. (N. S.) 99, although the principles as to the latitude of averment in equitable actions are liberally laid down, still certain statements of probative facts appear to have been stricken out as irrelevant, though the particulars of those statements are not given in the report: thus showing that the same general rules prevail
in equitable as in legal cases ; though wider in their general scope, in those falling under the former category.
Objections to pleadings, on the score of indefiniteness or uncertainty, do not appear to be of such frequent occurrence. The reported cases, on that branch of the subject, are only two. In Smith v. Shufelt, 3 C. R. 175, a motion of this nature was refused ; though the answer merely alleged, on information and belief, that the plaintiff had received something on account of bis demand, and was not entitled to the whole sum claimed. The allegation there appears to have been, at all events, sufficient to raise an issue, on which the real question between the parties would be triable.
In Wiggins v. Gaus, 3 Sandf. S. C. R. 738 ; 1 C. R. (N. S.) 117, a stricter view was taken, and it was held that two successive answers, pleading a set-off, the first, by mere reference to the complaint, without stating particulars, and the second, in the words of a common count for work and labor in assumpsit, under the old practice, were both of them indefinite and uncertain; and the former of them was stricken out with costs.
In Tallman v. Green, 3 Sandf. S. C. R. 437, it was laid down that a pleading must set forth the case with sufficient certainty, so as to give the court adequate data on which to ground the judgment. The criterion here laid down will be useful on motions of this nature, though, in that case, the objection was raised by demurrer, and sustained by the court. The latter proceeding will, in fact, be, for the most part, the proper course under such circumstances.
In the Appendix will be found a form of notice of motion, under the above circumstances. The notice should specify exactly the parts objected to. This motion being made on the pleading itself, no affidavit will be necessary. See Darrow v. Viller, 5 How. 247. In case, however, the opposite party does not appear, it will be necessary to be prepared with proof, that the pleading moved upon is the one actually served by him, and of the date when it was so served.-- Rogers v. Rathbone, 6 How. 66.
In Howell v. Fraser, 6 How. 221, 1 C. R. (N. S.) 270, it was held, that where a pleading is correct in substance but not in form, the objection, on the ground of uncertainty, should be raised by motion of the above description, and not by demurrer. See, also, Fry v. Bennett, 9 L. O. 330 ; 1 C. R. (N. S.) 238, as before stated.
OF THE PLEADINGS IN AN ACTION, AND THE PROCEED. INGS IN CONNECTION THEREWITH, DOWN TO
THE JOINDER OF ISSUE.
OF THE COMPLAINT, AND THE PROCEEDINGS COLLATERAL
Tuis pleading answers to the declaration at common law, or the bill in chancery, under the old practice. It contains the statement of the case of the plaintiff, under which he seeks relief, and a definition of the relief sought by him. It is, therefore, the foundation of the action, and the original source of all other proceedings, down to the period of its final termination.
In justices' courts, as before remarked, the complaint and all other pleadings are verbal, except in certain cases, before adverted to.
The provisions of the Code on the subject of this important pleading, are as follows:
§ 141. The first pleading on the part of the plaintiff, is the complaint.
$ 142. The complaint shall contain:
1. The title of the cause, specifying the name of the court in which the action is brought, the name of the county in which the plaintiff desires the trial to be had, and the names of the parties to the action, plaintiff and defendant.
2. A plain and concise statement of the facts constituting a cause of action without unnecessary repetition.
3. A demand of the relief, to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated.
The first requisite, then, for the regularity of a complaint is, that it should be properly entitled, a precaution which ought indeed to be observed, with reference to every pleading or proceeding in the cause. The questions as to the name of the court in which relief is sought, have already been anticipated, and the cases thereon cited, under the head of summons. It is peculiarly essential that this should be properly stated in the complaint, and that the names of the parties should also be correctly given. A practice has obtained of occasionally entitling this pleading by the name of the plaintiff, and the name of the first defendant alone, with the words “et al.” subjoined, to signify that there are others. This seems to be decidedly incorrect, and contrary to the evident meaning of the statute. It is, however, one of that species of objections which the court will, in no case, allow to be insisted upon to the obstruction of justice. Thus, in Hill v. Thacter, 3 How. 407, 2 C. R. 3, where the complaint, was entitled, “ Emily Hill, &c. v. Christian Thacter," instead of Emily Hill, by Daniel Hill, her guardian, that title was sustained, in as much as the facts of Daniel Hill's guardianship, and the names, were correctly given in the body of the complaint itself. This is, however, one of those cases of occasional occurrence, which serve rather as beacons to point out the mistakes to be avoided, than as guides in any respect whatever.
Another point essential to the proper entitling of a complaint, is the statement of “the name of the county in which the plaintiff desires, the trial to be had.” In courts of special jurisdiction, such as the New York superior court, and court of common pleas, this precaution is not necessary. The name of the court itself, points out with certainty the place where the trial is to be had. In all other cases, however, the precaution is absolutely essential.
The governing sections of the Code on the subject of fixing the venue, are 123 to 125, inclusive. By sec. 123, actions in respect of real or specific personal property must be tried in the county in which the subject of the action, or some part of that subject, is situate, and the venue must be laid accordingly ; and by sec. 123, the venue as to actions for penalties and forfeitures, and against public officers, for acts done in the execution of their offices, is also declared to be local, except as regards offences committed on rivers, &c., between