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Causes of action stated separately.
What demurrer must state.
Specifications of demurrer.
Objections by an
Manner of proceeding when demarrer sustained
Demur to one er
court, and the county in which the action is brought, and the names of the parties, plaintiff and defendant, followed by the word "petition." Second, A statement of the facts constituting the cause of action, in ordinary and concise langnage, and without repetition. Third, A demand of the relief to which the party supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated; and, if interest thereon be claimed, the time from which interest is to be computed shall be also stated.
SEC. 95. Where the petition contains more than one cause of action, each shall be separately stated and numbered.
CHAPTER 3. Demurrer.
SEC. 96. The defendant may demur to the petition only when it appears on its face either, First, That the court has no jurisdiction of the person of the defendant, or the subject of the action. Second, That the plaintiff has not legal capacity to sue. Third, That there is another action pending between the same parties for the same cause. Fourth, That there is a defect of parties, plaintiff or defendant. action are improperly joined.
Fifth, That several causes of Sixth, That the petition does not
state facts sufficient to constitute a cause of action.
SEC. 97. The demurrer shall specify distinctly the grounds of objection to the petition. Unless it do so, it shall be regarded as objecting only that the petition does not state facts sufficient to constitute a cause of action.
SEC. 98. That when any of the defects enumerated in section ninety-six do not appear upon the face of the petition, the objection may be taken by answer; and, if no objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action.
SEC. 99. When a demurrer is sustained, on the ground of misjoinder of several causes of action, the court, on motion of the plaintiff, shall allow him, with or without costs, in its discretion, to file several petitions, each including such of said causes of action as might have been joined; and an action shall be docketed for each of said petitions, and the same shall be proceeded in without further service.
SEC. 100. The defendant may demur to one or more of the several causes of action stated in the petition, and answer to the residue.
SEC. 101. The answer shall contain: First, A general or spe- contain. cific denial of each material allegation of the petition controverted by the defendant. Second, A statement of any new matter constituting a defence, counter-claim or set-off, in ordinary and concise language, and without repetition.
fence, set-off, &c.
SEC. 102. The defendant may set forth, in his answer, as rounds of demany grounds of defence, counter-claim and set-off as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. Each must be separately stated and numbered, and they must refer, in an intelligible manner, to the causes of action which they are intended to answer.
SEC. 103. The counter-claim mentioned in the last section Kinds of get-off. must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim, or connected with the subject of the action.
off loses costs.
SEC. 104. If the defendant omit to set up the counter-claim Omissions of setor set-off, he cannot recover costs against the plaintiff in any subsequent action thereon; but this section shall not apply to causes of action which are stricken out of or withdrawn from the answer, as provided in sections one hundred and five and one hundred and twenty-nine.
SEC. 105. When it appears that a new party is necessary to Respecting new a final decision upon a counter-claim, the court may either permit the new party to be made by a summons, to reply to the counter-claim, or may direct the counter-claim to be stricken out of the answer, and made the subject of a separate action.
SEO. 106. A set-off can only be pleaded in an action founded When set-off may on contract, and must be a cause of action arising upon contract or ascertained by the decision of the court.
SEC. 107. When it appears that a new party is necessary to a when new party final decision upon the set-off, the court shall permit the new party to be made, if it also appear that, owing to the insolvency or non-residence of the plaintiff, or other cause, the defendant will be in danger of losing his claim, unless permitted to use it as a set-off.
SEC. 108. When cross demands have existed between persons Cross demands under such circumstances, that if one had brought an action against the other, a counter-claim or set-off could have been set up, neither can be deprived of the benefit thereof by the assign
Pleadings to be verified by affidavit.
ment or death of the other; but the two demands must be deemed compensated so far as they equal each other.`
SEC. 109. The guardian of an infant or person of an unsound mind, or attorney for a person in prison, shall deny, in the answer, all the material allegations of the petition prejudicial to such defendant.
CHAPTER 5. Reply.
SEC. 110. There shall be no reply, except upon the allegation of a counter-claim or set-off, in the answer.
SEC. 111. When the answer contains new matter, constituting a counter-claim or set-off, the plaintiff may reply to such new matter, denying, generally or specifically, each allegation controverted by him, and he may allege, in ordinary and concise language and without repetition, any new matter not inconsistent with the petition, constituting a defense to such new matter in the answer; or he may demur to the same for insufficiency, stating, in his demurrer, the grounds thereof; and he may demur to one or more of such defences set up in the answer, and reply to the residue.
SEC. 112. If the reply of the plaintiff, to any defence set up by the answer, be insufficient, the defendant may demur thereto, stating the grounds of such demurrer.
CHAPTER VI. General Rules of Pleading.
SEC. 113. The answer or demurrer, by the defendant, shall be filed within twenty days after the day on which the summons is returnable; the reply or demurrer, by the plaintiff, shall be filed within thirty days after the day on which the summons was made returnable. The demurrer by the defendant, to the reply of the plaintiff, shall be filed within forty days after the day on which the summons was made returnable.
SEO. 114. The court, or any judge thereof in vacation, may, in his discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this act, or, by an order, enlarge such time.
SEC. 115. Every pleading, in a court of record, must be subscribed by the party or his attorney.
SEC. 116. Every pleading of fact must be verified by the affidavit of the party, his agent or attorney. A pleading, verified as herein required, shall not be used against a party in any criminal prosecution, or action, or proceedings for a penalty or forfeiture, as proof of a fact admitted or alleged in such plead
ing, and such verification shall not make other or greater proof ne essary on the side of the adverse party.
.SEC. 117. The verification mentioned in the last section shall When verification not be required to the answer of a guardian defending for an infant or person of unsound mind, or a person imprisoned, nor
60.42 in any case where the admission of the truth of a fact stated in Replaced
the pleading might subject the party to a criminal or penal pro
SEC. 118. If there be several persons united in interest and Affidavit by any pleading together, the affidavit may be made by any one of such parties.
SEC. 119. The affidavit shall be sufficient if it state that the When affidavit affant believes the facts stated in the pleading to be true.
afidavits; to be
SEC. 120. In all cases where the party pleading is a non-resi- of non-residents dent of the county in which the action is brought, or if he shall filed. be absent from the county where the pleading is filed, an affidavit, male before filing the pleading, stating the substance of the facts af erwards inserted in the pleading, shall be a sufficient verification. Such affidavit shall be filed with the pleading intended to be verified thereby.
SEC. 121. The affidavit verifying pleadings may be made before any person before whom a deposition might be taken, and must be signed by the party making the same, and the officer before whom the same was taken, shall certify that it was sworn to or affirmed before him, and signed in his presence. The certificate of such officer, signed officially by him, shall be evidence that the affidavit was duly made, that the name of the officer was written by himself, and that he was such officer.
an officer who
To what verifics
SEC. 122. The verification of the pleading does not apply to tion applies. the amount claimed, except in actions founded on contracts, express or implied, for the payment of money only.
SEC. 123. When the affidavit is made by the agent or attorney, can be made by it must set forth the reason why it is not made by the party him- agent or attorney self. It can be made by the agent or attorney, only-First, When the facts are within the personal knowledge of the agent or attorney. Second, When the plaintiff is an infant, or of unsound mind, or imprisoned. Third, When the pleading to be verified is founded upon a written instrument for the payment of money only, and such instrument is in the possession of the agent or attorney. Fourth, When the party is not a resident of. or is absent from the county.
Pleadings to be
SEO. 124. In the construction of any pleading, for the pur- liberally construpose of determining its effect, its allegations shall be liberally
construed, with a view to substantial justice between the parties. SEC. 125. All fictions in pleadings are abolished.
SEC. 126. The title of a cause shall not be changed in any of its stages.
SEC. 127. If the action, counter-claim or set-off be founded on account or on a note, bill or other written instrument, as evidence of indebtedness, a copy thereof must be attached to and filed with the pleading. If not so attached and filed, the reason thereof must be shown in the pleading.
SEC. 128. If redundant or irrelevant matter be inserted in any pleading, it may be stricken out, on motion of the party prejudiced thereby; and when the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defence is not apparent, the court may require the pleading to be made definite and certain by amendment.
SEC. 129. The court, at any time before the final submission of the cause, on motion of the defendant, may allow a counterclaim or set-off, set up in the answer to be withdrawn, and the same may become the subject of another action; on motion of either party, to be made at the time such counter-claim or set-off is withdrawn, an action on the same shall be docketed and proceeded in, as in like cases after process served; and the court shall direct the time and manner of pleading therein. If an action be not so docketed, it may afterwards be commenced in the ordinary way.
SEC. 130. In pleading a judgment, or other determination of a court or officer of special jurisdiction, it shall be sufficient to state that such judgment or determination was duly given or made. If such allegation be controverted, the party pleading must establish, on the trial, the facts conferring jurisdiction.
SEC. 131. In pleading the performance of conditions precedent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part, and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing such performance.
SEC. 132. In an action, counter-claim or set-off, founded upon an account, promissory note, bill of exchange or other instrument, for the unconditional payment of money only, it shall be sufficient for a party to give a copy of the account or instrument, with all credits, and the endorsements thereon, and to state that there is due to him, on such account or instrument, from the adverse party, a specified sum, which he claims with interest.