IX. OBJECTIONS - DEMURRER OR MOTION TO STRIKE 1. Propriety of Motion or Demurrer. - A merely defective plea cannot be tested by a motion to strike from the files, but in such a case a demurrer is the proper remedy.1 The court will not decide the legal sufficiency of a plea on such a motion where a good defense is defectively stated, but if a party files a plea not authorized by the rules of pleading,3 or one which is wholly unauthorized in colloquium it was held that the notice of defense setting forth and admitting the speaking of the words and that they were spoken of and concerning the plaintiff supplies any omissions in this respect in the declaration. Hoyt v. Smith, 32 Vt. 313 See also Wood v.. Scott, 13 Vt. 42; Sanderson v. Hubbard, 14 Vt. 462. 1. Bemis v. Homer, 145 Ill. 567; Orne. Cook, 31 Ill. 238; Shotwell v. Dennis, 14 N. J. L. 503; Wilson v. Marks, 18 Fla. 322; Printup v. Rome Land Co., 90 Ga. 180; Mynatt v. Mynatt, 6 Heisk. (Tenn.) 31I. Leave to Amend. - In such a case the plaintiff is at liberty to demur, and then the defendant, if he thinks proper, may apply for leave to amend. Shotwell v. Dennis, 14 N. J. L. 503; Thellusson v. Smith, 5 T. R. 152; Knapp v. Hoboken, 39 N. J. L. 399. But where there are several pleas of the same kind, some of which have been held bad on demurrer, the others may be stricken out. Dime Savings Inst. v. Hoboken, 42 N. J. L. 293. A Plea Which Goes to the Gist of the action cannot be stricken out. Morgan v. Rhodes, 1 Stew. (Ala.) 70. Motion Instead of Demurrer. Where a plea is defective in form as being argumentative, or the like, it should be objected to by special demurrer, or where a motion instead of a special - demurrer is provided by statute that method should be pursued, but a general demurrer raises only the question as to whether the plea presents a substantial defense. Pendleton County v Amy, 13 Wall. (U. S.) 297. also, where the motion to strike was substituted for a special demurrer, Trabue v. Higden, 4 Coldw. (Tenn.) 620; Shirley v. Keathy, 4 Coldw. (Tenn.) 32. See also articles DEMURRERS at COMMON LAW AND UNDER THE CODES, vol. 6, p. 292; DUPLICITY, Vol. 7, p. 244. 2. Shotwell v. Dennis, 14 N. J. L. See Material Allegations Denied. - Pleas are not technically immaterial so as to justify the court in striking them out when they deny allegations in the declaration which the plaintiff must establish by evidence before he can recover. Klyce v. Black, 7 Baxt. (Tenn.) 278. 3. General Issue with Notice and Special Pleas. -So where the general issue with notice and special pleas are filed at the same time, it is held that the defendant can plead in either form, but cannot pursue both methods, and that his special pleas should be stricken out. Gilmore . Nowland, 26 Ill. 203. See supra, II. 2. g. Special Plea Amounting to General Issue, and article NOTICE OR BRIEF Statement of Defense, vol. 14, p. 1074. Short Plea. Where, under a statute, the court was authorized to strike out a pleading for duplicity or for being unnecessarily prolix, irrelevant, or frivolous, on motion of the adverse party, and it was further provided that the plea shall contain a succinct statement relied on as a defense to the action, except the plea of a general denial, a plea in short is frivolous and is to be treated as a nullity; and it is the duty of the court to disregard such a plea and order it stricken out or to proceed to render judgment as if no such plea had been put in, either on motion of the adverse party or on its own motion. Shirley v. Keathy, 4 Coldw. (Tenn.) 33; Grant v. Jennings, I Coldw. (Tenn.) 54. Plea Nullity Because Not Sworn to. Where a plea must be sworn to under statute, as a plea denying the execution of a written instrument, such a plea without the required verification is held to be a nullity and may be stricken out on motion. Merkle v. Bolles, 6 Blackf. (Ind.) 288; Barber v. Summers, 5 Blackf. (Ind.) 339; Riley v. Harkness, 2 Blackf. (Ind.) 34; McFarland 7. State Bank, 4 Ark. 44; Fowler v. Bender, 18 Ark. 262 [citing Wilson. Shannon, 6 Ark. 198; Hardwick v. Campbell, 7 Ark. 118; Little Rock v. State Bank, 8 Ark. 227; Wil the particular form of action,1 or files a plea out of time, a motion. to strike out is proper." Where the Plea Is Plainly Frivolous and trifling, or where the subjectmatter of the plea, although accurately and technically set out according to the soundest rules of pleading, is entirely destitute of merit and fails to answer the declaration, it may be stricken out on motion. liams v. Williams, 13 Ark. 421; Allis ". Bender, 14 Ark. 625; and Alexander v. Foster, 16 Ark. 660]. Violation of Terms of Order to Plead. If a defendant obtains an order for time to plead upon terms that he plead issuably, and instead of pleading issuably he pleads the statute of limitations, or any other plea which does not go to the merits, the plea will be stricken out on motion. Stadholme v. Hodgson, 2 T. R. 390. 1. Bemis v. Homer, 145 Ill. 567. Nil Debet in Assumpsit. If a plea in bar is not adapted to the nature of the action or conformable to the count, as if nil debet be pleaded to an action of assumpsit, the plaintiff may treat it as a nullity or move to set it aside. Shotwell. Dennis, 14 N. J. L. 503; Stafford v. Little, Barnes 257. A Where non assumpsit and not guilty are pleaded in assumpsit, it is held that after verdict the plea of not guilty should be treated as a nullity and stricken from the record. Ship Milwaukie v. Hale, 1 Dougl. (Mich.) 306. 2. Scope of Motion to Strike Out. motion to strike out pleas brings to the notice of the court the right of the defendant to file them, both as to the order of time and also as to whether it would subserve the ends of justice and the merits of the defense to require them to be answered. Pool v. Hill, 44 Miss. 310; Price v. Sinclair, 5 Smed. & M. (Miss.) 258. See also State v. Purcell, 39 W. Va. 44. Demurrer Improper. - An objection that the plea was not put in proper, time, or that it was not accompanied by proper affidavit, or that it was accompanied by another plea, must be taken by motion to set aside, and cannot be taken by demurrer. Pool v. Hill, 44 Miss. 311; Ludlow v. McCrea, 1 Wend. (N. Y.) 228; Nicholl v. Mason, 21 Wend. (N. Y.) 339; Morgan v. Dyer, 10 Johns. (N. Y.) 161. Plea in Abatement Filed with Plea in Bar. Where a plea in abatement is pleaded at the same time with a plea in bar, it will be stricken out on motion. Douglass v. Belcher, 7 Yerg. (Tenn.) 105. See article ABATEMENT IN PLEADING, vol. I, p. I. 3. Marshall v. Hamilton, 41 Miss. 229; Pool v. Hill, 44 Miss. 310; Bacon 2. Green, 36 Fla. 325; Rivers v. Rivers, 38 Fla. 65; State v. Purcell, 31 W. Va. 44; Westervelt v. Marinus, 3 N. J. L. 266; Coryell v. Croxall, 5 N. J. L. 879; North Brunswick Tp. v. Booraem, 10 N. J. L. 257; Shotwell v. Dennis, 14 N. J. L. 503; Duval v. Malone, 14 Gratt. (Va.) 24. Contradiction of Record. If a fact in a case is so conclusively established by the record that a contrary averment would not be admissible, a plea setting up the fact would be idle, and a motion should be made to strike such a plea from the files instead of demurring to it. People v. Harding, 53 Mich. 481. Equitable Pleas Presenting No Equita. ble Defense. Where pleas are interposed upon equitable grounds, if they present no defense properly cognizable on such grounds, it is settled by the practice in Florida that a motion to strike them is proper. Bacon v. Green, 36 Fla. 337, citing Spratt v. Price, 18 Fla. 289; Horne v. Carter, 20 Fla. 45; Johnston v. Allen, 22 Fla. 224, and Dickson v. Gamble, 16 Fla. 687. Uncertainty. Where, on account of indefiniteness and uncertainty in its allegations, it is impossible to tell whether the facts sought to be set up in a plea would constitute a legal or an equitable defense, the plea should be stricken out. Rivers v. Rivers, 38 Fla. 65. But see Mynatt v. Mynatt, 6 Heisk. (Tenn.) 311. When Motion Should Be Made. The correct practice requires that a motion to strike out pleas should be made before the evidence is in, and it is not in order to rule out evidence which, as the pleas stand, is legal and admissible.1 Nature of Motion to Strike. · A motion to discharge a plea made in due time presents the same question as if an application were made to file the plea.2 2. Harmless Error in Striking Out or Sustaining Demurrer to Plea. If a plea is stricken out or held bad on demurrer, but the defendant has the benefit of any defense raised thereby under another plea on file, it is held that any error in striking out the former or sustaining the demurrer thereto is rendered harmless.3 up its judgment, the error is harmless, where all the evidence admitted was properly admissible under the defend. ant's plea of the general issue. Rivers v. Rivers, 38 Fla. 65. 1. Johnson v. McCullough, 59 Ga. 212. Upon striking out a plea the court may, in its discretion, allow further time to plead. And if a plea is frivolous or is intended for the purpose of delay, no such indulgence should be granted. Trimmier v. Hamilton, 3 McCord L. (S. Car.) 425. See articles SHAM AND FRIVOLOUS PLEADING; TIME TO PLEAD. 2. Pool v. Hill, 44 Miss. 306. And Where Objection Is Made to the Filing of the Plea it should not be received if the facts set up constitute no defense. State v. Purcell, 31 W. Va. 44. Upon Amendment. If, after pleas are adjudged bad on demurrer, the defendant is given leave to amend, and files pleas which would not have been received by the court if tendered at the time when such leave was granted, a fortiori the court ought to strike them out when filed under indulgence giving time to amend the pleadings. Parker v. Lewis, Hempst. (U. S.) 72. In Nature of Demurrer. A notice of a motion to strike out a notice of special matter filed with the plea of the general issue is in the nature of a demurrer. Camp v. Allen, 12 N. J. L. 1. Admission by Motion. A motion to reject a plea in bar for insufficiency admits the truth of the matters pleaded. State v. Purcell, 31 W. Va. 44. 8. Rake z. Pope, 7 Ala. 161; Bacon v. Green, 36 Fla. 324; Wadhams v. Swan, 109 Ill. 54; Clark v. Bell, 8 Humph. (Tenn.) 26; Sanders v. Young, 1 Head (Tenn.) 219; Grand Chute v. Winegar, 15 Wall. (U. S.) 355. a Plea to Amended Declaration. - Where demurrer to a plea is improperly sustained, and the declaration is thereafter amended, and the plea to the amended count is in substance the same as if it had been overruled on demurrer, and the defendant has the benefit of this plea on the trial, the overruling of the first plea is harmless. Bacon v. Green, 36 Fla. 324. 584 Sustaining Demurrer to Special Pleas. Although it is permissible under the statutory system of pleading to file a special plea setting up matters which are available under the general issue also pleaded, erroneously sustaining a demurrer to the special plea is not ground for reversal, because the proof can be made under the general issue and no injury results. Rodgers v. Brazeale, 34 Ála. 512; Hopkinson v. Shelton, 37 Ala. 307; Stein v. Ashby, 24 Ala. 521; Rake v. Pope, 7 Ala. 161; McKenzie v. Jackson, 4 Ala. 230; Shehan v. Hampton, 8 Ala. 943; Merchants', etc., Bank v. Evans, 9 W. Va. 373; City F. Ins. Co. v. Carrugi, 41 Ga. 660. Volume XVI. PLEAS IN EQUITY. BY JOHN LEHMAN L. DEFINITION and Nature, 587. 1. In General, 587. 2. Plea and Answer Compared, 588. b. To Avoid Expense of Answering, 588. d. Plea as Evidence, 588. e. Defense by Plea or Answer, 588. 3. Plea and Demurrer Compared, 589. 4. Plea Unusual in Practice, 590. 6. Pleas Not Pure, 591. b. Anomalous Plea, 592. II. FRAME OF PLEA, 593. 1. Title and Commencement, 593. 2. Direction to Specific Part of Bill, 593. 3. Conclusion, 593. 4. Verification, 594. 5. Signature of Counsel, 595. III FILING, 595. 1. Time of Filing in General, 595. 3. After Full Answer, 596. IV. WITHDRAWAL OF PLEA, 597. V. USE OF PLEAS IN PARTICULAR CASES, 597. 1. Furisdiction Generally, 597 2. Furisdiction of the Person, 597. 3. Plea to the Person, 597. 4. Plea in Bar, 598. a. Displacement of Equity of Bill, 598. b. Matter in Pais Generally, 598. c. Defect of Parties, 599. d. Statutory Bar, 600. (1) Statute of Limitations, 600. (2) Statute of Frauds, 600. e. Matter of Record, 600. (1) Former Adjudication, 600. 5. Matter Arising After Bill Filed, 601. 9. To Bills to Impeach Decrees, 601. 11. To Bills of Revivor, 602. 12. To Supplemental Bills, 602. 13. To Bills of Review, 602. VI. REQUISITES AND SUFFICIENCY, 602. 1. Same Strictness Required as at Law, 602. 2. Statement of Perfect Defense - Certainty, 603. 3. Negative Plea, 604. 4. Plea Bad in Part and Good in Part, 604. 5. Plea to Relief and Discovery, 605. 6. Plea to Relief Good for Discovery, 605. 7. Several Pleas in Order, 606. 8. Plea to Part or Whole of Bill, 606. 9. Double Pleading, 607. a. Rule Against Duplicity, 607. b. Several Matters Tending to One Point, 608. d. Several Pleas by Leave of Court, 608. VII. SUPPORTING AND ACCOMPANYING ANSWERS, 609. 2. Plea and Answer to Different Parts of Bill, 609. 4. Supporting Answers, 610. a. Necessity and Propriety in General, 610. b. Pure Plea, 610. c. Negative Plea, 611. d. Plea to Bill Anticipating Defense - Anomalous Pleas, 612. e. When Discovery Is Not Necessary, 613. (1) Matter of Bill Insufficient to Require Answer, 613. (2) Necessity Dependent on Sufficiency of Bill, 613. (3) Effect of Waiver of Answer under Oath, 614 f. Nature of Supporting Answer, 615. (1) For Discovery Only, 615. (2) Plea Overruled by Supporting Answer, 615. g. Denial by Plea and Answer, 616. 5. Answers in Subsidium, 618. VIII. PROCEEDINGS UPON THE PLEA, 618. 1. Replying to or Setting Down for Argument, 618. 2. Test of Sufficiency - Setting Down for Argument, 618. 3. Effect of Setting Down for Argument, 620. 4. Pleas Referred Before Argument, 620. 5. Questions of Form or Irregularity - Motion, 621. 6. Effect of Allowing Plea, 622. |