8 equity and actions at law; therefore, in a proper sense, actions are not legal or equitable, both being merged in the single civil action of the code. Remedies, however, are both legal and equitable, and are to be applied by the court in each case, so far as may be consistent with the relief sought by either or both parties and sustained by the testimony. In other words, all the remedies known to law are placed in the hands of the court for it to apply as the justice of each case may require. Principles not changed. The code has not changed the principles by which courts determine the rights, duties and liabilities of the parties to an action. They remain as before its adoption; therefore, in stating a cause of action it must appear from the facts alleged that there is a liability of the defendant to the plaintiff to enforce which he is entitled to invoke the aid of the court. To enforce or protect these rights, all the remedies known, either at law or in equity, still remain to a party, and may be speedily applied by the court through the single civil action of the code.1 All good pleading in stating a cause of action is based upon reason which the causes which produce the injury are stated, the conis a species of logic in sequences following as a natural result. Case to be retained if plaintiff entitled to any relief. Under the former practice if a party brought an action at law, and on the trial it appeared that his remedy was in equity, or if he brought an action in equity, as to enforce specific performance of a contract, and on the trial the court denied him relief in equity but held that he could recover at law, the effect in either case was that the action was dismissed and the plaintiff frequently, after heavy expenses had been incurred in trying to enforce his rights, must pay the costs and begin a new action. This arbitrary rule had its origin in the separate tribunals which formerly administered law and equity and has been retained where the common law prevails, although law and equity are administered by the same tribunal. This unjust In Wilcox v. Saunders, 4 Neb. 587, Chief Justice Lake, in a few apt words, stated the effect of the code as follows: "While the ancient forms of action are now abolished, all the various remedies known to the law still remain, rule has been swept away by the code, and an action does not fail because the plaintiff may have mistaken his remedy either in form or extent if he has stated a cause of action. Under the code, therefore, if it appears from the facts stated in the petition that the plaintiff is entitled to relief, either at law or in equity, his action will not be dismissed, even if he has prayed for a judgment not warranted by either the pleadings or proof, but the court in a proper case, upon such terms as may be just, will permit him to amend either the petition or prayer, and will grant him such relief as it may appear he is entitled to. A court bases its judgment upon the pleadings in a case; therefore, when the plaintiff states facts in his petition which show that the defendant has failed in the performance of his duty to the plaintiff, or is guilty of an actionable wrong by which the latter is sustaining, or has sustained, damages, the law affords relief, and this, whether the facts upon which the right to relief rests are few and simple, or numerous and complex. In either case the plaintiff sets forth his grievance or grievances, and the court grants relief either at law or in equity, so far as the plaintiff establishes his right to the same. A petition is not demurrable, therefore, because the prayer for relief is not warranted by the facts stated in the petition. 3 Jury trial. Where the pleadings present both legal and equitable issues the parties are entitled to a jury, if demand for one is made at the proper time, and all the issues are to be tried together, as the court will not try a case in fragments. There is some conflict in the authorities on this point, but the above rule seems to be the more reasonable one. Where a jury is waived and the cause tried to the court, and it is found during the trial that certain issues should be submitted to a jury, the cause will not be dismissed, but the court may order it remanded to the proper court. Construction of pleadings. pleading was to be construed 571. 1 Davis v. Morris, 36 N. Y. 569 2 Parker v. Laney, 58 N. Y. 469; Richmond v. Dubuque R. Co., 34 Ia. 442-489. Under the common law every strongly against the pleader 3 Baker v. Mo. Pac. Ry., 34 Mo. App. 98. In such case the court may permit the prayer to be amended and grant any relief within the issues which is warranted by the evidence. because it was assumed that he had stated his case as favorably as he could. Nothing could be inferred nor supplied by implication to sustain it. Therefore, if a pleading was defective, either in form or substance, it was held insufficient. This rule has been abrogated by the code to this extent, that in construing a pleading for the purpose of determining its legal effect, its allegations are to be liberally construed. This rule does not require the court to lean in favor of the pleader in lieu of its former bias against him, but requires the court to give the language employed its natural meaning and force, and every reasonable intendment and presumption is to be made in favor of the pleading. In effect, to apply the same rule that it would to a contract-sustain it if possible. 1 Where the objection to sufficiency is first made at the trial. Where the objection to the sufficiency of the petition is made for the first time, after the issues have been formed, and on the trial of the cause, the court will construe the petition very liberally, and, if possible, sustain it. that the party has answered and raised an issue facts, creates a presumption in favor of the pleading; objection is made for the first time after judgment. 3 The fact upon the so, if the Ambiguity. It is the duty of a party under the code no less than at common law, to state his cause of action or defense in a clear and unequivocal manner, and if he fail to do so, and a material allegation is susceptible of two constructions, 1 Case v. Phoenix Bridge Co., 55 N. Y. Super. Ct. 25; Orr v. Water, etc., Co., 19 Nev. 60.; Morse v. Gilman, 16 Wis. 504; Hazelton v. Union Bank, 32 Id. 34-42; Olcott v. Carroll, 39 N. Y. 436– 438; Shank v. Telple, 33 Iowa, 189; Foster v. Elliott, Id. 216; Gray v. Coan, 23 Id. 344; Doolittle v. Green, 32 Id. 123; Trustees et al. v. Odlin, 8 O. S. 297; Clark v. Dillon, 97 N. Y. 373; Sullivan v. Dunphy, 4 Mont. 499; Malone v. Sherman, 17 Jones & S. 530; Bushey v. Reynolds, 31 Ark. 657; Wilcox v. Hausch, 57 Cal. 139; McCurdy v. Baughman, I N. E. R. 93; Robinson v. Greenville, 42 O. S. 625. 2 Morse v. Gilman, 16 Wis. 504; Barkley v. State, 15 Kas. 99; Hazelton v. Union Bank, 32 Wis. 35; Black v. Drury, 24 Tex. 289; Quintard v. Newton, 5 Robt. 72; Roberts v. Taylor, 19 Neb. 184. In the case last cited it is said: "The practice of objecting, on the trial, to the introduction of evidence because the petition fails to state a cause of action, is not to be encouraged. When the witnesses are in attendance, and a large amount of expense incurred, which would have been avoided had an objection been made by demurrer at the proper time, the court will, if possible, sustain the petition, and, if need be, permit an amendment to be made instanter, to cure the defect. 3 Western Ins. Co. v. Scheidle, 18 Neb. 500; Barkley v. State, 15 Kas. 99. the one most unfavorable to the pleaders will be adopted. 1 This rule is very clearly and concisely stated by Lake, Ch. J., in Gibson v. Parlin, supra. 3 This rule has been applied where causes of action ex delicto and ex contractu are blended together, so that it is uncertain whether the action was upon contract or tort, 2 and where an answer was susceptible of two constructions, one of payment, the other of counter claim. It is probable that the cases last cited gave too narrow a construction to the code, and that an answer may state facts constituting a defense to the action, and also be proper ground of counter claim, and that the objection to it must be made by motion. 4 Ambiguity: reasonable intendment. The rule above stated is subject to this qualification, that the language of the pleader is to have a reasonable intendment and construction, and when an expression is capable of different meanings, that shall be taken which will support the declaration, and not the other which will defeat it. 5 6 7 At common law a pleading was not objectionable as ambiguous if it was certain to a common intent, and the same rule prevails under the code. Thus, in Olcott v. Carroll, the court of appeals of New York, in construing ambiguous words which grammatically might refer to a part of the petition which would make them intelligible and thereby state a cause of action, or to another part which would show no liability, sustained the pleading, although favorable to the pleader. 8 In other words, applied the ambiguous words to that part of the petition which taken together would state a cause of action. 1 Clark v Dillon, 97 N. Y. 370; Saunders v. Atlanta, etc., R. Co., 10 S. E. R. 266; Garmany v. Guano Co., 80 Ga. 578; Douthit v. Mohr, 116 Ind. 482; Wright v. McCormick, 67 N. C. 28; Nation v. Cameron, 2 Dak. 347; Triscony v. Orr, 49 Cal. 612; State v. Beal, 88 Ind. 106; Curtis v. Cutler. 7 Neb. 318; Gibson v. Parlin, 13 Id. 292. 2 Ridder v. Whitlock, 12 How. Pr. 208. 3 Bates v. Rosekans, 23 How. Pr. 98; 37 N. Y. 409. 4 Lancaster, etc., Co. v. Colgate, 12 O. S. 344. I Chit. Pl. (ed. of 1867), 237; Steph. Pl. 380; Hastings v. 'Wood, 13 Johns. 482; Allen v. Patterson, 7 N. Y. 480. 6 Steph. Pl. 380. 7 39 N. Y. 436. 8 Allen v. Patterson, 3 Seld. 476; Spence v. Spence, 17 Wis. 462. And where the adverse party has gone to trial without objecting to the pleadings of his opponent, such pleadings will be liberally construed in favor of the pleader. 1 Ordinarily the remedy under the code for ambiguity is a motion to make definite and certain. Hypothetical allegations. A charge in a pleading should be direct and positive, and ordinarily should not be in the alternative; as where the action is for writing and publishing a libel, an allegation that the defendant wrote and published or caused to be written and published a certain libel, etc., was at common law held bad for uncertainty. So in an action for an escape, an answer that if the prisoner escaped it was without the consent or knowledge of the defendant, and if any such escape was made the prisoner has since voluntarily returned, was held to be hypothetical and insufficent. 3 This vice is not infrequent, particularly in framing answers, and should be avoided. Nothing is gained by this form of statement, because under the code all the facts stated in the petition, not denied by the answer, for the purpose of the action, are taken as true. A qualified denial, therefore, which in effect admits the charge attempted to be denied, is unavailing. The remedy, however, is a motion to correct the pleading if the charge as made constitutes a cause of action or defense. Argumentative pleading. A pleading in which the facts are stated indirectly is said to be argumentative. A pleading should not be a mere recital stating no fact; but the averments should be positive, as, in an action for assault and battery, it was alleged that "the said A B, by, his attorney, complains for that whereas the said C D heretofore, to wit, etc., made an assault," instead of "the said C D, on the day of ―, etc., made an assault," etc. 4 To some extent argumentative pleading is permitted under the code, as where the plaintiff, as a part of his pleading, sets out a copy of the contract sued on, which states the promise was for a valuable consideration. 5 If |