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DEFENSIVE PLEADINGS

Ch. 19

ample, as the Omission of an Allegation re­quired by the Substantive Law as essential to the Cause of Action or Defense. In the latter case the Defect could easily be cured by an Amendment, hence it may therefore not be worthwhile to Demur.
And whether the Defect was of such char­acter as an Amendment would remove or not, a further question may arise as to whether it might not be desirable to ignore the objec­tion at the moment and plead. By such tac­tics a party often gained the advantage of contesting the case with his adversary, in the first instance, by a Trial on the Merits of an Issue of Fact by a Jury; and in the second instance, if he lost on the Trial, by urging the Objection in Law, after Verdict and before Judgment, by Motion in Arrest of Judgment, or after Judgment, by Writ of Error. This maneuver, however, may not always prove successful; for though none but Formal Objections are cured by the Statutes of Jeofails and Amendments,3 there are some Defects of Substance as well as Form which may be Aided by Pleading Over as well as by the Verdict; and therefore, unless the fault be clearly of a kind not to be so Aided, a Demurrer is the only Mode of Objection that can be relied upon. The additional de­lay and expense of a Trial is also sometimes a material reason for proceeding in the regu­lar way by Demurrer, and not waiting to Move in Arrest of Judgment, or to bring a Writ of Error. Another reason for demur­ring is that Costs are not generally allowed when Judgment is Arrested, nor where it is Reversed upon Writ of Error, but each party pays his own Costs, while on Demurrer the party succeeding obtains his Costs.4
It has been contended that Argument on

Demurrer is usually futile. Time and effort are spent by Lawyers and Courts in criticiz­ing Pleadings on points far removed from the


3. Id. at 166.

merits involved. The Demurring Attorney is engaged in educating his opponent on the Law. The tendency, therefore, is to avoid pointing out important Errors, or pressing them any more than is necessary to raise them on the Record in the Appellate Court. Demurring is seldom more than a waste of time and a means of delay, except (1) where there is some essential element of a Cause of Action or Defense which is not set up, and which cannot be supplied with any chance of proving it; (2) when the Pleading, al­though Good in Substance, is not as definite and certain as it ought to be, and by a Spe­cial Demurrer the Pleader may be required to state his case more in detail, thereby giv­ing better notice, narrowing the issues, and increasing the risk of Variance in the Proof. In some jurisdictions Special Demurrers for Defects in Form have been abolished, but the line between Form and Substance is difficult to draw. To abolish Demurrers entirely, while allowing the same Objections in Point of Law to be raised under another name, is as ludicrous a piece of self-deception as the old Fictions in Ejectment. Some other solution of the abuses must be found.5

FORCED ISSUES UNDER TUE CODES
193. An early joinder of issue is forced un­der Codes which do not permit pleading be­yond the answer or reply stage.
UNDER Code Systems an early issue is forced by the Limited Series of Pleadings, the altercation being cut short at an arbi­trary stage—the Answer in some Codes, the Reply In others, If a material issue has not been already evolved, an Issue of Fact is raised by Operation of Law, and with respect to any material New Matter alleged in the last pleading, the adversary may prove at Trial, in response thereto, any Facts by way
L Sbipinan, Randbook of Common-Law Plead1ng~ C. 12, Demurrer, AMer. and Amendment, 294 (3d ed. by Ballantine, St Paul, 1923).

~. Ibid.


Sec. 193 CLASSIFICATION OF DEFENSES
of Denial or of Confession and Avoidance.6 sues, but it was deemed more convenient to This is in line with the Policy of the Courts under the General Issue, when it was found inconvenient to attempt to focus the contro­versy upon ultimate and decisive Special Is­

a. romeroy, Code Remedies, c. TV, ~ 475, 47e, code provisions respecting reply, 812—sW (5th ed. Bos­ton, 1929).


Koffler & Peppy Com.Law PIdg. H.B—14

383


leave a vague complex issue, to be analyzed later at the Trial. The Ancient Theory of Issues still remains, though all Pleadings sub­sequent to the Answer or Reply have been lopped off, leaving the case to be further developed by Evidence without Pleadings.

Sec.

CHAPTER 20


THE DEMURRER2

The Nature and Office of the Demurrer.

The Speaking Demurrer.

The Demurrer and Other Pleadings Distinguished.

The Scope of a Demurrer.

General and Special Demurrers and Defects Available Thereunder.

Effect of Demurrer—By Way of Admission.

Effect of Demurrer—In Opening the Record.

Judgment on Demurrer.

Status of the Demurrer—Under Modern Codes, Practice Acts and Rules of Court.



TilE NATURE AND OFflCE OF

THE DEMURRER
19& If the Allegations of the Pleading of the Adverse Party are legally insufficient upon their Face to sustain the Cause of Action al­
1- In general, on the Demurrer at Common Law, Un­der Modern Codes, Practice Acts and Rules of Court, see:
TreatIses: B. C., Doctrine of Demurrers; Setting Forth a variety of Dcmnrrers, in All Sorts of Ac­tions; and in AU Several Parts of Pleading, (Lon­don, 1706); I-Ierteil, The Demurrer: Or Proofs of Error in the Decision of the Supreme Court of New York, Requiring Faith in Particular Religious Doc­trines as a Legal Qualification of Witnesses, (New York, 1828); Stephen, A Treatise on the Principles of Pleading in Civil Actions, (London, 1824); 2 TIdd, The Practice of the Court of King’s Bench, e. XXX, Deinurrers, and Amendment (London, 1824); Ship­man, flandbook of Common-Law Pleading, c- XII, Demurrer, Aider and Amendment, § 146, 277 (3d ed. by Ballantine, St. Paul, 1923); Perry, Common-Law Pleading, c. IX, Of Demurrer, 232 (Boston, 1897); Martin, Civil Procedure at Co,nmon Law, c. IX, De­fenses, Art. II, Demurrer, ~ 236—242, pp. 194—204 (St. Paul, 1905); Gould, A Treatise on the Principles of Pleading in Civil Actions, c. v, Of Demurrer, 570 (6th ed. by Will, Albany, 1909); Scott, Funda­mentals of Procedure In Actions at Law, e. ‘V. Amendment and Jeof ails, 143 (New York, 1922); Clark, flandbook of the Law of Code Pleading, C. VIII, Demurrers and Motions 499 (2d ed, St. Paul, t947).

Jeged or to Constitute a Defense, as the ease may be, Objection may be taken by Demurrer. A Demurrer will lie for insufficiency either in Substance or in Form. And since a Demurrer does not Deny the Facts which are alleged in the Pleading to which it is interposed, they
Articles: Abbott, To Demur or Not to Demur, 44 ATh. L.J. 453 (1891); LoomIs, The Effect of a Decision Sustaining a Demurrer to a Complaint, 9 Yale U. 387 (1900); Edgcrton, The Consolidation of Pre­liminary Motions and Demurrers in Connecticut, 22 Yale Li’. 302 (1913); Millar, Restriction of the Ret­roactive Operation of the Demurrer, 10 IILL.Rev. 417 (1916); Cook, Effect of the Abolition of the Equitable Demurrer, 10 Iowa L.ltcv. 193 (1925); smith, Some Problems in Connection with Motions, 25 Col.LRev. 752 (1925); Atkinson, Allcgations of Time in Pleading, 35 Yale L.J. 487 (1926); AtkInson, Some Procedural Aspects of the Statute of Limita­tions, 27 CoI.L.Rev, 157 (1027); AtI~insox~, Pleading the Statute of Limitations, 35 Yale U. 014 (1927); Clark & Tenon, Amendment and Aider of Pleadings, 12 Mlnn.L.Rev. 97, (1925); Welman, Demurrer to Pants of Complaint, 7 Thd.L.J. 165 (1931); Arnold, Motions to Make Specific and to Resolve Conclu­sioas, 7 Ind.L.J. 77, (1931); Millar, The Fortunes of the Demurrer, 31 IILL.Rev. 429 (19341); Eagleton, Two Fundamentals for Federal Pleading Reform, 3 U. of Chl.L.Rev. 376 (1930); Pike, Objections tO Pleadings Under the New Federal Rules of Civil Pro— cedure, 47 Yale L.J. 50 (1937); Botwein, Pleading and Practice Under the New Federal Rules—A Sur­tOy and Conipartson, S Brooklyn LSev. 188 (1938); Stayton, Scope and Function of the New Federal Rules and Texas Rules, 20 Texas LIter. 16, 24

194.


195.

196.


197.

1.98.


199.

200.


201.

202.


384

Sec. 194


THE DEMURRER

385


stand admitted, with the result that the only question remaining is one as to their Sufficien­cy in Law.
Definition
THE word “Demurrer” is taken from the Latin word demorari and the French word demeurer, which, etymologically, primarily signifies a delay or pause, and is, at Common Law, the Formal and General Mode of dis­puting the sufficiency in Point of Law of the Pleading of an Adversary, either as to Form or Substance.2 More specifically, a Demur-
(1941); Uoth, Pleadings and Motions, 29 Iowa Lucy. 23 (1943); Brown, Some Problems Concerning Mo­tions Under Federal Rule 12(b), 27 Minn.LRev. 415 (1943); Prasbker, New ‘York Rules of Civil Practice Affecting Motions Directed to Pleadings: The Revi­sion of 1944, 19 St. John’s U.Rev. 1 (1944); Friedman, Comments on Several of the Proposed Amendments to the Federal Rules of Civil Procedure, 6 Fed.B,J. 206 (1945); Cagen, Post-Trial Qeestioning of Defects in Pleadings, 24 Chi.Kent L.I{ev 335 (1940); La­throp, The Demurrer Ore Tenus, 1947 Wis.U.Itev. 426; Mandelker, Practice—Use of Demurrer and Di­rected Verdict in Negligence Cases, 1949 W’is.L.Rev. 603; Tripp, Some Observations on Motion Practice in New York, 2 Syracuse L.Rev. 273 (1951).
Comments: Pleading—Foreign Law—Demurner, 19 Col.L.Rey, 240 (1919); Pleading—Plea In Abate­ment—Code, 18 Mich.L.Rev. 433 (1920); Pleading---Wrongful Death—Statutory Period—Condition Precedent or Limitations Period, 29 Yale Li’. 572 (1920); Can the Bar of the Statute of Limitations be asserted on Demurrer’? 30 W.Va.L,Itev. 110 (1924); Judgments—Bes Judicata—General Dismis­sal of a Suit in Equity Upon a Demurrer Sustained, 32 W.VaL.Rev, 248(1920); Pleading—Demurrer to an Entire Answer, 24 Mieh.LRev. 312 (1920) Pleading—Federal—procedure of a Spenking Mo­tion Under New Federal Rules, 15 So,Calif.L.Rcy. 272 (1942); “Speaking” Motions to Dismiss Under the New Rules of Civil Procedure, 14 Rocky Mt.L. Rev. 131 (1942); Res Judicata: Effect of Judgment Entered on Demurrer, 30 Calif,L.Rev. 487, 488, n. 7 (1942); Statute of Limitations as a Pleading Problem In Iowa, 29 Iowa Lltev. 591 (1944); Post-Trial Objections in Illinois, 43 Ill.L.Rev. 61 (1948).
Annotations: Admissibility as Evidence of Pleading as Containing Admissions Against Interest, 14 A.L. B. 22 (1021); Id., 90 SL.R. 1393 (1934).

rer is a Procedural Device, which neither as­serts nor denies any Matter of Fact, but which, by failing to Deny the Facts in the Pleading to which it is interposed, leaves those Facts standing admitted, under the op­eration of the Rule that whatever is not De­nied at the Next Succeeding Stage of Plead­ing, stands admitted, with the result that the only remaining question is One of Law as to whether, under the Substantive or Procedural Law, the Pleading Demurred to is sufficient, that is, in Form and in Substance. In other words, the Demurrer was one of the Proce­dural Devices which aided the Common Law in its Issue-Making Process.


While, in a certain sense, a Demurrer is not a Pleading, in another sense, it is a plead­ing; that is, in the sense that if it is inter­posed to a Declaration, it will prevent the Entry of a Judgment by Default,3 in substan­tially the same way as would any Defense on the Merits. Thus, for instance, if A de­clares in Ejectment, alleging Title, Ouster and Damages, and B fails to Answer, a Judg­ment by Default will he Entered. Such, how­ever, would not be the case if B interposed a Demurrer. In the sense that such use of a Demurrer will, like a Plea to the Merits, prevent the Entry of a Judgment by default, it may be regarded as a Pleading.
The Office of a Demurrer

THE Office of a Demurrer is to raise an Issue of Law as to whether the Pleading of the Adverse Party, to which the Demurrer is interposed, is sufficient on its Face to sus­tain the Cause of Action alleged, or to con­stitute a Defense, as the case may be. If a Demurrer is interposed to a Declaration, it
On the relation of Procedure to Substantive Law, see, article by Clark, The Handmaid of Justice, 23 Wash. L’,L.Quarterly 296 (1931).
3. But while a Demurrer Is not, In this limited sense, a Plea, It is so far a Pleading as to prevent the Entry of a Judgment by Default. Oliphant v. Whitney, 34 Cal. 25, 27 (1867).

2. Martin, Civil Procedure at common Law, c. IX,


Art. II, 236 (St. Paul, 1905).

386


DEFENSIVE PLEADINGS

Cli. 20


raises an Issue of Law as to whether, on the Face of the Declaration, assuming the Facts alleged to be true, the plaintiff has stated Facts which, as a Matter of Substantive Law, and the Rules of Pleading, entitle him to the redress which he seeks. If he fails to in-dude an Allegation required by the Substan­tive Law, this constitutes a Substantive De­fect, which, if Apparent upon the Face of the Declaration, may be reached, at the Pleading Stage by Demurrer; after Verdict and before Judgment, by Motion in Arrest of Judgment; and after Judgment, by Writ of Error, and possibly by Motion for Judg­ment Notwithstanding the Verdict. At the Trial Stage, the same Defect might possibly be reached by Motion for Judgment on the Pleadings,
If, however, the plaintiff includes in his

Declaration all the Allegations required by the Substantive Law to state a good Cause of Action, but states these Allegations in vio­lation of some Rule of Pleading, he is said to be guilty of a Defect in Form, which may be reached at the Next Succeeding Stage of Pleading by a Special Demurrer. Thus, to illustrate, if the plaintiff in Ejectment, by way of stating Title, alleged that he had a “grant deed” of Blackacre, his Declaration would be bad on Special Demurrer, as having stated an Evidentiary Fact, which violates the Rule of Pleading that the plaintiff should have stated the Ultimate Fact of Title, to wit, that he was “seized” of Blackacre. If he had omitted any statement whatsoever as to Title, he would have been guilty of a Substantive Defect, which is generally avail­able on General Demurrer. Generally speak­ing, therefore, a Special Demurrer was used to reach Defects in Form; while a General Demurrer was used to reach Defects in Sub­stance; but since a Special Demurrer in­cludes a General Demurrer, a Special De­murrer may also reach Defects in Substance, for reasons which will be explained in con-

nection with the effect of the Statute of De­mutters enacted in 1585.~
The Import of a Demurrer in Pleading

A Demurrer, as we have seen, imports in Pleading that the Party will await the Judg­ment of the Court as to whether he is bound to answer the Pleading of his Adversary. In short, it advances the legal proposition that the Pleading Demurred to is Insuff i­cient in Law to maintain the case stated by the adverse party.5 A Demurrer may be en­tered by either Party and to any Pleading until an Issue is joined;6 and it may be for insufficiency either in Substance, as that the case shown by the opposite party is want­ing in an essential element, as, for example, where a Declaration in Special Assumpsit for Breach of a Contract fails to allege Consid­eration or a Promise; or in Form, as that the Matter Alleged is substantially sufficient, but is stated in such an artificial manner as to violate a Rule of Pleading. For it is a cardinal principle of Law that every Plead­ing must contain Matter Sufficient in Point of Substantive Law to constitute a Cause of



Action or a Defense, and that such Matter must be deduced and alleged according to the Form required by Law, or without vio­lating any Rule of Pleading as to how Sub­stantive Allegations of any character must be set forth; and, if either of these require-
4. 27 Eliz. e. 5, § 1, o statutes at Large 360 (1585).
5. People v. Holten, 259 111. 219, 222, 102 N.E. 171, 172 (1913).
A Demurrer to a Declaration cannot properly he said to go to the Merits, except in cases where a Judgment on the Demurrer In favor of the defend­ant would be a Bar to a subsequent Suit on the Same Cause of Action; and this can never be the case where the Declaration is Defective only for the want of some necessary Averment. Quarles V. Waidron, 20 Ala. 217 (1852). And see Hick-ok v. Coatcs, 2 Wend. (N.Y.) 419, 20 Am.Dec. 632 (1829). Cf. Alabama: GlIjasple V. Wesson, 7 Port. (Ala.) 454, 31 AmJl)ee. 715 (1888); Arkansas: Auditor v. Woodruff, 2 Ark. 73, 33 Am.Dee. 368 (1839).
6. 1 Coke Litt. Lib. 2. c. 3 § 96 (1st Am.Ed. by Day,

Philadelphia, 1812).

Sec. 195

THE DEMURRER

387


ments be wanting, it is cause for Demurrer;7 General if the Defect is Substantive, Special if it is Formal.
By a Demurrer the party Demurring Ten­ders an Issue. It is not an Issue in Fact, but an Issue in Law, the question raised being whether the Pleading Demurred to is suffi­cient, as a Matter of Law, assuming the Facts to be true because not Denied, to require the party Demurring to answer it. As questions of Law are for the determination of the Court, the Demurrer refers the Issue to the Judgment of the Court.8
THE SPEAKING DEMURRER
195. A “Speaking Demurrer” is one which Alleges some New Matter, not Declared by the Pleading against which the Demurrer is aimed and not Judicially Known or Presumed to be true.
WHEN a party Demurs to an Adversary’s Pleading, his object is to raise an Issue in Point of Law as to whether the Facts alleged are sufficient to sustain his opponent’s Cause of Action or Defense, as the ease may be. If the Demurrer is successful it eliminates any necessity to answer on the part of the De­murrant. It follows, therefore, that the De­murrant must accept the Facts Alleged in the Pleading Demurred to exactly as stated, and
7- English: Colt & Glover v. Bishop of Coventry and

Lichfield, Rob. 140, SO Eng.Rep. 290 (1612); Geor­gia: Wallace v. Holly, 13 (Ja. 389, 58 Am.Dec. 518

0853); Michigan, Stout v. Keyes, 2 Dong. (Mich.)

183, 43 Am.Dee. 105 (1s95). See, also, Illinois:

Ohio & If. fly. Co. v. People cx rel. Van Gilder, 149

Ill. 003, 30 N.E. 989 (1894).


A Demurrer is but a legal exception to the Sufficiency

of a Pleading. Mason v. Cater, 192 Iowa 143, 182

NW. 179 (1921); Wood v. Papendiek, 208 Ill. 385,

109 N.E. 266 (1915).


8- A Pleading which, with all reasonable inferences in favor of the Pleader, shows Facts entitling him to Relief, is not subject to Demurrer, the Office of which is to raise an Issue of Law as to the Sub­stantial Rights of the Parties. Sogn v. Koetzle, 38 S.D. 99, 100 N.W. 520 (1916).

that the Demurrer should be free from any Allegations of Fact additional to those Al­Ieged in the Pleading to which it is inter­posed. And it should neither Deny the Facts stated, nor expand, reduce, modify or vary in any respect the Facts stated in the Plead­ing challenged.° A Demurrer which Denies any Fact in the Pleading to which it is ad­dressed, or which, in order to sustain itself, requires the suggestion of Additional Facts not Appearing on the Face of the Pleading objected to,” or seeks in any way to change or qualify the Statement of Facts presented in the Adverse Pleading, is called a Speaking Demurrer.1’ Such a Demurrer is customar­fly overruled because, as a Speaking De­murrer, it violates a Rule of Pleading and is out of order.’2 In some cases, however, if such a Demurrer raises a meritorious Point of Law, it may be considered, the fact imper­tinently suggested being ignored.”


9. “It is not the Office of a Demurrer to Allege

Facts.” Jennings v. Peoria Co., 196 Ill.App. 195, 198

(1915); Wood v. Papendick, 268 III. 383, 109 N.E.

206 (1915).


14. As, for example, where a Demurrer suggests that another Suit between the same l’arties and involv­ing the same Subject-Matter is pending. Arthur v. Richards, 48 Mo. 298 (1871). See, also, Alabama:

watts v. Kennamer, 210 Ala. 64, 112 So. 333 (1927);

Federal: Card v. Standard Co., 202 Fed. 351 (1912).
11. Georgia: Clark v. Land Co., 113 Ga. 21, 38 SE.

323 (19O~ Michigan: Walker v, Conant, 65 Mieh.

194, 31 N.W. 786 (1887); New York: Brooks v.

Gibbons, 4 Paige (N.Y.) 374 (1834).


12. Connecticut: Husbands v. Aetna Co., 93 Conn.

194, 105 AtI. 480 (1919); Illinois: People v. Holten,

259 Ill. 219, 202 N.E. 171 (1913); Federal: United

states v. Forbes, 259 Fed. 585 (1919), acId ZOS Fed.

273 (1920).
On the Speaking Demurrer Under Modern Codes, see Clark, Handbook of the Law of Code Pleading, e. 8, § 80, p. 514 (2d ed,, St. Paul 1947).
An interesting dispute as to “Speaking Motions” arose under the Federal Rules, as to which, see Clark, Handbook of the Law of Code Pleading, c. 8, 50, pp. 540—545 (24 ed, St. Paul 1947).
13. Graham v. Spence, 71 N.J.Eq. 183, 63 AtI. 344 (1906).

388


DEFENSIVE PLEADINGS

Cli. 20


THE DEMURRER AND OTHER PLEAD­

INGS DISTINGUISHED


196. A Demurrer can never be founded upon

Matter Collateral to the Pleading which it Opposes, but must always arise on the Face of the Statement of the Facts itself.


THE distinction between a Demurrer and

Other Pleading is that a Demurrer raises an Objection as to the Intrinsic Insufficiency of the Pleading to which it is interposed,”

whereas a Plea, Replication, Rejoinder, or Other Pleading containing a Statement of Facts, undertakes to defeat the adversary by the injection into the Case of Matter Collat­eral to that which has been alleged by the adversary. Because of this distinction, the Common-Law Rule and the Rule under the Statute of Anne (1705)15 was that a Party could not Plead and Demur at the Same Time to the Same Matter. The defendant was not, at Common Law, permitted to Plead and Demur because of the incongruity between the Plea and the Demurrer. This Rule was not altered by the Statute of Anne (1705), as it merely permitted a defendant to Plead Several Defenses, and a Demurrer, as we have seen, was strictly speaking not a Plea, but rather an Excuse for Not Pleading.’°

TUE SCOPE OF A DEMURRER


197. the Demurrer, as a Procedural Weap­on, may be used to attack the Adversary’s Pleading as a Whole, or in Part. In so doing
14. Gould, A Treatise on the Principles of Pleading, Ft 111, 01 Pleading, 571 (6th ed. by Will, Albany, 1900).
15. 4 Anne, c. 16, § 4, 11 Statutes at Large 150, which provided: “And be it further enacted by the Autbor­ity aforesaid, That from and after the said ñrst day of Trinity Term it shall and may be Lawful for any defendant or Tenant in any Action or Suit, or for any plaintiff in Replevin, in any Court of Record, with the Lea-re of the Same Court, to Plead as many Several Matters thereto, as he shall think necessary for his Defense.”
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