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AS has been observed, the Court will gen­erally consider the Whole Record, and give Judgment for the Party who, on the whole, appears entitled to it. But where, though the right, on the Whole Record, appears to be with the plaintiff, if he has not put his Action on that ground, the defendant will prevail. Thus, where, in an Action on

a Covenant to perform an Award, and not to prevent the arbitrators from making

it, the plaintiff Declared in Covenant, and

Assigned, as a Breach, that the defendant

would not pay the sum Awarded, and the

defendant Pleaded a revocation of the au­

thority of the arbitrators by deed, before

Award made, to which the plaintiff De­

murred, the Court held the Plea good as being a sufficient answer to the Breach alleged, and therefore gave Judgment for the defendant, although they were of opinion that the matter stated in the Plea would have entitled the plaintiff to maintain his

Action if he had alleged, by way of Breach,



89. 109 Ill. 340 (1854).

Bistorically, It may be said that no such Rule was developed by the English cases, and in Illinois, it originated with the ease of Brawner v. Lomax, 23 El, 496 (1860), although the Bale may have been foreshadowed In MeFaddea v Fortier, 20 III. 509 (1858). See, also, Bills v. Stanton, 69 III. 51 (1873).



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that the defendant had prevented the arbi’. trators from making their Award.9

JUDGMENT ON DEMURRER

201. The Judgment rendered upon a Dc­riurrer is the Judicial Determination by the Court, without a Jury, of an Issue of Law only. When rendered in favor of the Party Demurring to a Pleading-in-Chief, its effect is that of a Final Determination of the Merits of the Cause, unless, as is now generally allowa­ble, the Pleading is Amended so as to obviate the objection. When rendered against the Par­ly Demurring, it was Final at Common Law, but lie is now permitted to Plead Over. And a Judgment on a Demurrer in Abatement is Final, but a Judgment on a Demurrer to a Plea in Abatement is not Final.



The General Rule

THE General Rule is that a Demurrer, either General or Special, follows the Nature



of the Pleading Demurred to; and accord­ingly the result will be different where the Demurrer is directed to a Dilatory Plea as opposed to a Plea in Bar.

Where the Demurrer is Directed to a Plea in Abatement
THUS, a Judgment on a Demurrer to a Plea in Abatement, if for the defendant, is that the Writ be Quashed; If for the plaintiff, it is a Judgment of Respondeat Ouster, or that the defendant Answer Over,92

Where the Demurrer is Directed to any Pleading in Chief

WHERE the Demurrer is directed to any Pleadings-in-Chief, such as the Declaration, Plea in Bar, or other Subsequent Pleading, which goes to the Action, the Judgment is Final, that is, if for the plaintiff, quod recuperet; if for the defendant, quoci eat sine

•~- Marsh v. Bolted, 5 Barn, & AId. 507, 106 Eng.Rep. 1276 (1822).
And see, Head v. Baidrey, C Ad. & B, 459, 112 Eng.Rep. 175 (1837).

die.°3 In other words, on Demurrer to any Pleadings which go to the Action, the Judg­ment for Either Party will, at Common Law, be the same as upon an Issue of Fact Joined upon the Same Pleading, and found in favor of the Same Party.°4 At Common Law, in case of a Judgment in favor of the Party Demurring, it was Final against the Other Party, and disposed of the Action on the Merits. The latter could not Amend his Pleadings and go on with the Action. But in time the Rule was relaxed. Under Mod­em Practice and Statutes, generally the Courts will permit him to Amend. So, likewise, if the Judgment was against the Party Demurring, it was Final at Common Law.95 In Modern Practice, however, and under the Statutes, it is otherwise, and he is very generally allowed to Plead Over on the Merits.

Eflection to Stand on Demurrei~

IF, the Demurrer of a Party was over­ruled, and he was still of the opinion that he was correct on his theory of the Law, he might, as was said, Elect to “stand on his Demurrer,” or refuse to withdraw it and enter a Plea to the Merits. In such an event his next move was to seek a Review in the Appellate Court on a Writ of Error.°6



93. Ibid.

Sec. 201


THE DEMURRER

Cli. 20
has De­Irrer has over, an al Rule, the suf­impotent ng term defend­ision, he tar at ion, ~e oppo­

405


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sill gen­tnd give whole, though appears not put fendant ~tion on and not making nt, and fendant mci the the au­before iff De­;ood as Breach ent for opinion

would am his Breach,

tule was lirlois, it )max, 23 we been

RI. 509

1 (1873).



04. English: lruniphreys v. Betliily,2Ve,mL 222, 86 Eug.Rep. 403 (16S0); Alabama: Perkins v. Moore, 16 Ala. 17 (1849); Delaware: Silver v. Rhodes, 2 }Iar. (Del.) 360 (1837); Georgia: Gray v, Gray, 34 Ga. 400 (1860); Illinois: Mt. Carbon Coal & It. Go. V. Andrews, 53 1]). 176 (1870); Weiss v. Bi,mian, 173 lU. 241, 52 N.E. 009 (1899); Maine: State v, Peck, 60 Mo. 49S (1872); Maryland: Brown v. Jones, 10 Gill. & J. (aid.) 33-1 (18.30); New Harnpshir.o: Little v, Perkins, 3 Nil. 469 (1826); New Jersey: Hale v. Lawrence, 22 N.J.L. 72 (1840); New York: Bou­chaud v. Dias, 3 Denio (N.t) 238 (1S40); Federal:

Martin v. Bartew Iron Works, 35 Ga. 320, Fed.Cas. No. 9,157 (1800).


9~. Hale v. Lawrence, 22 NIL. 72 (1840); State v. Peek, 00 Me, 408 (1872).
90. ThIs Rule is subject to the qualification that the Party whose Demurrer is overruled must take No Steps from which a Waiver of his Demurrer might

12. See Gould, The Principles of Pleading at Com­mon Law, 587 (6th ed. by Will, Albany, 1900).

406

DEFENSIVE PLEADINGS

Ch. 20


Where the Defendant Demurs in Abatement

A Demurrer to a Plea in Abatement and a Demurrer in Abatement should be clearly distinguished. As previously observed the Statute of Elizabeth (1585) and the Statute of Anne (1705), did not apply to Pleas in Abatement, hence as before the Statutes, so, likewise, after the Statutes, a General Demurrer was sufficient to reach a Defect in Form in a Plea in Abatement.°7 And, as previously observed, the Judgment on a De­murrer to a Plea in Abatement was not Final. But where a defendant entered a Demurrer, and Assigned as Ground of his Demurrer, Matter which ought to have been Pleaded in Abatement, the Court gave a Final Judg­ment.9~ Contrary to the case of a Demurrer to a Plea in Abatement, in which case the Judgment is not Final, the Judgment on a Demurrer in Abatement is Final,99 as a De­murrer cannot partake of the character of a Plea in Abatement.’

Effect of Judgment on Demurrer—Res Judi­crzta

IN those instances where, as observed, a Final Judgment is Rendered on a Demurrer, it is as Conclusive of the Facts confessed by the Demurrer as a Verdict finding the same Facts would have been, since they are estab­lished, in both cases, by Matter of Record. The Judgment in such case operates as an

be implied, such as leave to Plead Over. Bennett v. Union Cent, Life Ins. Go., 203 111. 430, 67 N.E. 971

(1903).


On the Effect of an Overraled Dermii’rer, not wiU’ drawn, as an Admission of the Facts, see Cutler v. Wriglfl, 22 N.Y. 472 (1800).
07. Walden v. flolmnu, 2 Ld.Ilayni. 1015, 02 Eng.Rep.
175 (1703).

08. Doekniioique v, DavenanI, 1 Salk. 220, 91 E:ig.Rep,



195 (1704).

90. Tyler v. Rand, 7 How. (U.S.) 572 (1840).


1. Since the abolition of Pleas in Abatement by the

Code, Defects formerly available on this Plea arc

now taken advantage of in the Answer. New York:

Gardner v. Clark, 21 N.Y. 890 (1860); Oklahoma:

Maxia V. Oklahoma Portland Genlent Co., 74 Okla.

31, 176 P. 907 (1918).

Estoppel, and Facts thus established can never afterwards be contested between the same Parties, or those in Privity with them, in another Suit.2 If, therefore, on a De­murrer to a Declaration, Judgment is Ren­dered for the defendant, the plaintiff can never afterwards maintain against the same defendant, or those in Privity with him, any similar action upon the same Grounds as were disclosed in the First Declaration, unless such Judgment result from the Omission of an Essential Allegation. In the latter instance the Judgment would be No Bar to a Second Action supplying the Missing Allegation; nor is it a Bar, where the Action is miscon­ceived, to an Action afterwards brought in proper form. The Ground upon which the Estoppel rests, in these instances, is a deter­mination of the Merits of the Action, which, by Reason of the Admitted Facts shown upon the Record, the Unsuccessful Party is pre­cluded from again bringing into question. And the result confirms the view that one of the Fundamental Functions of Pleading is to Preserve a Record of a Controversy once Litigated, in order to serve as a basis of a Plea of Res Judicata, and thus prevent the Relitigation of a Cause once settled.

STATUS OF THE DEMURRER—UNDER

MODERN CODES, PRACTICE ACTS

AND RULES OF COURT

202. Under the Modern Reformed Procedure, the Demurrer, as a Procedural Device to test

2. In general, on the Effect of a Judgment oji Duniur­rev as lies Judicata, see:
Articles: Loomis, The Effect of a Decision Sustain­ing a Demurrer to a Complaint, 9 Yale U. 387 (1900); Von Moschzisker, lIes Judieatn, 33 Ink L.J. 299, 318—321 (1029).
Comment: Jle.s Judicala : Effect of Judgiu(’nt Entered on Demurrer, 30 Galif.L.Itev. 487 (19i2).
See, also, the following cases: Illinois: Vanlanding’ ham v. Ryan, 17 Ill. 23 (1855); Indiana: Wilsoa v. Ray, 24 Ind. 150 (1865); FederaL: Bissell v. Spring valley Twp., 124 U.S. 225, 8 S.Ct. 495, 81 LEd. 411 (1888); Cf. Indiana: Stevens v. Dunbar, 1 machf. (md.) 56 (1820); Massachusetts: Wilbur v. Gilrnore, 21 Pick. (Mass) 250 (1838).

THE DEMURRER

407


Sec. 202

the Formal and Substantive Qualities of a pleading, has been abolished in some States, and replaced by the Motion, in lieu thereof. It seems doubtful whether the Change has been one other than in the name used to describe the Procedural Device by which an Objecting Party may Assert his Right to Refuse to An-

swer.

IN some States, under Modern Coëes, Prac­tice Acts, and Rules of Court, the Demurrer has been abolished,3 but in lieu thereof the same Defects, formerly available on Demur­rer, may generally be reached by Motion.



Thus, in New Jersey, the Rules pro­vided: Rule 26. “Demurrers Are Abolished. Any Pleading may be struck out on Motion on the Ground that it discloses no Cause of Action, Defense or Counterclaim respective­

ly. The Order made upon such Motion is Ap­pealable after Final Judgment. In lieu of a Motion to Strike Out, the same Objection, and any Point of Law (other than a question of Pleading and Practice) may be raised in



3. For an enumeration and discussion of Code pro­visiens Abolishing the Demurrer, see Clark, Hand­book of tie Law of Code Pleading, c. A, § 86, pp. 535— 545 12d ed, St. Paul, 1947).

the Answering Pleadings, and may be dis­posed of at, or after, the Trial; but the Court, on Motion of either Party, may determine the question so raised before Trial, and if the Decision be decisive of the whole case the Court may give Judgment for the Successful Party or make such order as may be Just.”

Rule 27 provided: “Objections to Plead­ings other than those provided for in Rule 26 above, shall be Made by Motion. The Action of the Court thereon is appealable after Final Judgment.”

Rule 28 provided: “Every Motion ad­dressed to a Pleading must present every Cause of Objection then existing.”

How effective this Reform was is clearly seen in Savage v. Public Service Ry. Co.,5 in which the plaintiff in a cause for personal

injuries alleged that, as a passenger while standing on the rear platform of the car, about to enter the body of the said car, she was suddenly jerked from her feet and thrown to the floor of the car “by the negli­gent operation thereof.” After the Pleadings were completed, and the case came on for Trial, on the basis of a Reserved Right, the

defendant Moved to Strike Out the Complaint on the Ground that the Complaint disclosed no Cause of Action; in that a General Allega­tion of Negligence was Insufficient. The Motion was sustained, Judgment was entered, whereupon the defendant Appealed. After adverting to the abolition of the Demurrer by the provisions as set out above, the Court then proceeded with the discussion of the Issue as to whether a General Allega­tion of Negligence was good as against the Motion. Chief Justice Gummere declared:

“The question upon which the determina­tion of this Appeal depends is whether the Complaint could have been successfully at­tacked by a General Demurrer, upon the Ground that it disclosed no Cause of Action; and we think that it must be answered in the

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A defendant may be permitted to Answer Over on the Merits after a Motion is denied. Anserge V.

Kane, 244 N.Y. 395, 155 N.E. 683 (1927).
In general, on the abolition of the Demurrer, see:
Articles: Edgerton, The Consolidation of Preliminary

Motions and Demurrers in Connecticut, 22 Yale L.J.

302 (1913); Rothschild, The Simplification of Civil

Practice in New York, 23 Col.L.flev. OhS, 732

(1923); Cook, Effect of the Abolition of the Equita­ble Demurrer in Iowa, 10 Iowa L.Rev. 193 (1925);

Atkinson, Pleading the Statute of Limitations, 30

Yale L.J. 914 (1927); Rotwein, Pleading and Prac­tice Under the New Federal Rules~A Survey and

Comparison S Brooklyn L.Bev. 188 (1038); Pike,

Objections to Pleadings Under the New Federal

Rules of Civil Procedure, 47 Yale L.J. 50 (1937);

Clark, Simplified Pleading in Connecticut, 16 Conu.

B.J. 83 (1942); Brown, Some Problems Concerning

Motions Under Federal Rule 12(b), 27 Minn.L.Rev.

415 (1943).


Comment: “Speaking’ Motions to Dismiss Under New Rules of Civil Procedure, 14 Rocky Mt.L.Rev. 131 (1942).

Ltel’ed


nding­son v. ipring

d. 411 lackf.

Imere,

4. Rules 26, 27 and 28, N.J. Practice Act 1012.



5. 95 N.J.L. 432, 113 Atl. 252 (1921).

negative. In the case of Central Railroad Co. v. Van Horn, 38 N.J.L. 133, 138, the defendant interposed a Demurrer to the Sec­ond Count of a Declaration, which showed merely that the plaintiff was in one of the cars of the defendant company under a duty by it to carry her safely, and while there that she was, ‘through the negligence, carelessness and misdirection of the defendant and its agents and servants, thrown from and under the coaches of the said defendant.’ It svas held by the Supreme Court that, although this Averment was so uncertain and insufficient in detail as to afford the defendant little, if any, information as to what the Specific Act of Negligence was, or what agency of the company was responsible for it, it was clearly good on a General Demurrer, the Defect being one of Form and not of Sub­stance. In Breese ‘s’. Trenton Horse Rail­road Co., 52 Id. 250, 253, a Count which stated in General Terms that by the careless management of the car in a public street by the agents of the defendant it thereby ran over the body and arm of the plaintiff, was held good on a General Demurrer. In Race v. Easton and Amboy Railroad Co., 62 Ic!. 536, a Count in a Declaration simply Averring, in effect, that by reason of the negligent and improper running of defend­ant’s railroad train, and blowing of the whistle on its locomotive, a horse which was being driven on the highway by the plaintiff became frightened and overturned the wag­on, and that plaintiff was thereby thrown out



and injured, although not specific enough for a proper Pleading was permitted to stand as against a General Demurrer. Ferguson v. Western Union Telegraph Co., 64 Id. 222, is to the same effect. In Minnuci v. Philadel­phia and Reading Railroad Co., 68 Id. 432, it was declared that an Averment in a Decla­ration which stated that the plaintiff’s In­juries were caused solely by the negligence of the defendant, without more, although it did not fulfill the requirement of the Rule

Ch.20
of Pleading that the certainty of the State­ment of the Plaintiff’s Case must be such as in a reasonable measure to apprise the Defendant of the case to be made against him, was good on General Demurrer.”

From the foregoing, it would seem clear that in New Jersey the abolition of the De­murrer, in effect, was in name only.6
The Federal Solution of the Problem

THE New Federal System,7 provides for the abolition of the Demurrer, and the State­ment of All Defenses in Law or Fact in the Responsive Pleading, where one is required. It also permits certain Defenses to be raised by Motion, which may be heard and deter­mined in advance of Trial, or the Court may order the hearing and determination of the Motion deferred until the Trial.


Additionally, under the Federal Rules,t where a party contends that the opposing pleading has failed to state a claim upon which relief can be granted, matter outside the pleading may be presented to and con­sidered by the Court, and in such event the Motion will be treated as one for Summary Judgment.
Effect of Reform Sum,nwrized

WHAT, one may well ask, has been accom­plished in the states by substituting the Motion in lieu of the Demurrer? At first glance, it may appear that this change has been quite sweeping in its effect, whereas, in fact, it is more of a change in Form than in Substance, because in order to determine the Scope of the substituted Motion, it is necessary to understand the Scope of the Demurrer, as it exists and operates at Com­mon Law. Thus, if it be asked, what kind of Motions do we have, the answer is, the



408 DEFENSIVE PLEADINGS

6. ThIs Is indicated also in the case of Newark Two,,­tieth Century Taxicab Ass’n v. Lerner, 11 N.J.Super. 368, 78 A.2d 315 ~195i).


7. Fed.Ruie 7(e); FeU.Rulc 32(4 Fed.IIu’e 12(’fl.
8. Fcd.ltule 12(11).

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Sec. 202
same kind of Motions as we had Demurrers at Common Law, or General Motions reach­ing Substantive Defects, and Special Motions reaching Defects in Form. If it is asked, what does a Motion Admit, the answer is, it Admits substantially the Same Facts as were formerly Admitted by a Demurrer. If the question is, what Defects in Pleading may be reached by a Motion, the reply is, the Same Defects which, at Common Law, were available upon General or Special De­murrer. If it is inquired, how far does a Motion Open up the Record, the answer is, back to the Declaration or Complaint, just as the Demurrer did; and finally, if it be asked, what Exceptions are there to the General Rule as to the Retrospective Effect

of the Motion, the answer is, the Same as at Common Law, in so far as those Excep­tions are susceptible of application to a Code System of Pleading which ordinarily does not extend beyond the Replication Stage.
It thus appears that, except for the change in nomenclature, or the substitution of the name “Motion” in place of the name “De­murrer”, and except for the fact that a Mo­tion may come up f or Argument on five days notice, whereas a Demurrer came up for Argument on twenty days notice, there is in general no substantial difference between the Motion and the Demurrer, and it may be questioned whether sufficient gain has been registered to justify the change, with its resultant confusion and litigation.

THE DEMURRER 409

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Sec.


CHAPTER 21

PLEAS—DILATORY’

The Nature of Dilatory Pleas.

The Order of Dilatory Pleas.

Pleas to the Jurisdiction.

Pleas in Abatement.

Nonjoinder or Misjoinder of Parties Plaintiff in Contract.

Nonjoinder or Misjoinder of Parties Defendant in Contract.

Nonjoinder or Misjoinder of Parties in Actions Ex Delicto.

Requisites of Pleas in Abatement.

Pleas in Suspension.

Judgment on Dilatory Pleas.

Formal Commencement and Conclusion.

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

TIlE NATURE OF DILATORY PLEAS
203. Dilatory Pleas are those which do not Answer the General Right of the plaintiff, either by Denial or in Confession and Avoid­ance, but assert Matter tending to defeat the Particular Action by resisting the plaintiff’s
1. In general, on the subject of Dilatory Pleas, see:
Treatises: 1 Tidd, The Practice of the Court of King’s Bench in Personal Actions, c, XXVII, Of Pleas to the Jurisdiction (London, 1824); Stephen, A Trea­tise on the Principles of Pleading in Civil Actions, c I, Of the Proceedings in an Action, from Its Corn­Ineneement to Its Termination, 83—89 (3rd Am. ed. by Tyler, Washington, 11 C. 1900); Perry, Common-Law Pleading: Its History and Principles, c. VII, Of the Proceedings in an Action from Its Corn’ Inencement to Its Termination, 175—ITS (Boston, 1897); Martin, Civil Procedure at Common L~(w, c. X, Defences by Way of Dilatory Pleas, 205—215 (St. Paul, 1905); Gould, A Treatise on the Prin­ciples of Pleading, Pt. III, Div. IV, Of Dhlatovy Pleas, 405—473 (6th ed. Albany, 1909); Shipman, Handbook of Common-Law Pleading, c, XVI, Dila­tory P]eas’, 382—496 (3rd ed. by Ballantine, St. Paul, 1923); Keigwin, Cnses in Common Law Pleading, e. XII, Dilatory Pleas 074—679 (2d ed. Rochester, 1934).
ArtloJe: Jones & Carlin, Nonjoinder and Misjoinder of Parties in Cemmon-Law Actions, 28 W.Va.L.Q.

197, 260 (1022).

Comments: Nul Tiel Corporation, A Plea in Bar, 27 W,Va.L,Q. 355 (1021); Parties—Joinder of De­fendants In Tort Actions, 18 Mich.L.Itev. 708 (1920);

Present Right of Recovery; they may be di­vided into three classes;

(I) Pleas to the Jurisdiction and Venue;

(II) Pleas in Abatement;

(III) Pleas in Suspension.
IF the defendant does not Demur to the plaintiff’s Declaration, his only alternative is to seek to dispute the alleged liability by some Form of Plea. Pleas are separated into Two Classes: first, Dilatory Pleas, or Pleas which seek to prevent a Final Judgment on the merits; 2 second, Peremptory Pleas, or Pleas more popularly known as Pleas in Bar, which seek to bring about a Final Judgment on the merits.3
Pleading—Plea in Abatement—Code, 18 Micli.Ldtev. 433 (1920).

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