SUMMARY

VII. IN GENERAL,

Object of written pleadings, § 2131.- Less technicality than formerly necessary, § 2132.- Pleadings in federal courts conformable to those in state courts, § 2133.- Law and equity not to be blended, § 2134.

§ 2131. Written pleadings terminating in one or more integral propositions of law or fact are necessary in order that the whole case may appear on record for revision by a court exclusively concerned in questions of law. McFaul v. Ramsey, §§ 2135-39.

§ 2132. Modern times have greatly modified the excessive accuracy and technicality required by early common law, but the attempt to abolish all system by legislation, only destroys certainty and simplicity and introduces great and needless confusion. Ibid.

§ 2133. Pleadings and practice in the federal courts are to conform as nearly as may be to the pleadings and practice in the state courts at the same time. Lewis v. Gould, § 2140. § 2134. In the federal courts legal and equitable causes of action are not to be blended in one suit. Hurt v. Hollingsworth, SS 2141-43.

[NOTES.-See SS 244-2165.]

MCFAUL v. RAMSEY.

(20 Howard, 523–527. 1857.)

Opinion by MR. JUSTICE GRIER.

STATEMENT OF FACTS.- Ramsey, the plaintiff below, instituted this suit in the district court of the United States for the district of Iowa. The parties have been permitted by that court to frame their pleadings, not according to the simple and established forms of action in courts of common law, but according to a system of pleadings and practice enacted by that state to regulate proceedings in its own courts. This code commences by abolishing "all technical forms of actions," prescribing the following curt rules for all cases, whether of law or equity:

"Any pleading which possesses the following requisites shall be deemed sufficient: 1. When to the common understanding it conveys a reasonable certainty of meaning. 2. When, by a fair and natural construction, it shows a substantial cause of action or defense. If defective in the first of the above particulars the court, on motion, will direct a more specific statement; if in the latter it is ground of demurrer."

$2135. Necessity and object of pleadings.

If the right of deciding absolutely and finally all matters in controversy between suitors were committed to a single tribunal it might be left to collect the nature of the wrong complained of, and the remedy sought, from the allegations of the party ore tenus, or in any other manner it might choose to adopt. But the common law, which wisely commits the decision of questions of law to a court supposed to be learned in the law, and the decision of the facts to a jury, necessarily requires that the controversy, before it is submitted to the tribunal having jurisdiction of it, should be reduced to one or more integral propositions of law or fact; hence it is necessary that the parties should frame the allegations which they respectively make in support of their demand or defense into certain writings called pleadings. These should clearly, distinctly and succinctly state the nature of the wrong complained of, the remedy sought and the defense set up. The end proposed is to bring the matter of litigation to one or more points, simple and unambiguous.

2136. Early and modern pleading compared.

At one time the excessive accuracy required, the subtlety of distinctions introduced by astute logicians, the introduction of cumbrous forms, fictions and

contrivances which seemed only to perplex the investigation of truth, had brought the system of special pleading into deserved disrepute, notwithstanding the assertion of Sir William Jones that" it was the best logic in the world except mathematics." This system is said to have come to its perfection in the reign of Edward III. But in more modern times it has been so modified by the courts, and trimmed of its excrescences, the pleadings in every form of common-law action have been so completely reduced to simple, clear and unambiguous forms, that the merits of a cause are now never submerged under folios of special demurrers, alleging errors in pleading which, when discovered, are immediately permitted to be amended. This system, matured by the wis dom of ages, founded on principles of truth and sound reason, has been ruthlessly abolished in many of our states, who have rashly substituted in its place the suggestions of sciolists, who invent new codes and systems of pleading to order. But this attempt to abolish all species and establish a single genus is found to be beyond the power of legislative omnipotence. They cannot compel the human mind not to distinguish between things that differ. The distinction between the different forms of actions for different wrongs, requiring different remedies, lies in the nature of things; it is absolutely inseparable from the correct administration of justice in common-law courts. § 2137. Danger of abolishing slowly matured system in pleading. The result of these experiments, so far as they have come to our knowledge, has been to destroy the certainty and simplicity of all pleadings and introduce on the record an endless wrangle in writing, perplexing to the court, delaying and impeding the administration of justice. In the case of Randon v. Toby, 11 How., 517, we had occasion to notice the operation and result of a code similar to that of Iowa. In a simple action on a promissory note, the pleadings of which, according to common-law forms, would not have occupied a page, they were extended to over twenty pages, requiring two years of wrangle, with exceptions and special demurrers, before an issue could be formed between the parties. In order to arrive at the justice of the case, this court was compelled to disregard the chaos of pleadings and eliminate the merits of the case from a confused mass of fifty special demurrers or exceptions, and decide the cause without regard to these contrivances to delay and impede a decision of the real controversy between the parties. In the case of Bennett v. Butterworth, 11 How., 667, originating under the same code, the court were unable to discover from the pleading the nature of action or of the remedy sought. It might with equal probability be called an action of debt, or detinue, or replevin, or trover, or trespass, or a bill in chancery. The jury and the court below seem to have labored under the same perplexity, as the verdict was for $1,200, and the judgment for four negroes. In both these cases this court have endeavored to impress the minds of the judges of the district and circuit courts of the United States with the impropriety of permitting these experimental codes of pleading and practice to be inflicted upon them. In the last mentioned case, the chief justice, in delivering the opinion of the court, says: "The constitution of the United States has recognized the distinction between law and equity, and it must be observed in the federal courts.

In Louisiana, where the civil law prevails, we have necessarily to adopt the forms of action inseparable from the system. But in those states where the courts of the United States administer the common law, they cannot adopt these novel inventions which propose to amalgamate law and equity by enacting a hybrid system of pleadings unsuited to the administration of either.

We have made these few introductory remarks before proceeding to notice. the merits of the controversy as developed by the record, in order that the bar and courts of the United States may make their records conform to these views, and not call upon us to construe new codes and hear special demurrers or pleadings, which are not required to conform to any system founded on reason and experience. To test such pleadings by the logical reasoning of the common law, after requiring the party to disregard all forms of action known to the law under which he seeks a remedy, would be unwarrantable and unjust.

The plaintiff's petition sets forth his grievances in plain, intelligible form, if not with technical brevity and simplicity.

1st. He alleges a contract with defendant to deliver to him eight hundred hogs on or before a certain day; in consideration whereof, the defendant agreed to pay plaintiff $5.50 per hundred pounds net. He avers that he did deliver according to contract, at the time and place, the number of eight hundred hogs; that defendant refused to receive over five hundred and fifty of them, or pay for the remainder.

2d. He complains that defendant refused to receive and butcher the hogs in accordance with the agreement, and, thus caused by his delay, that the plaintiff was put to expense in feeding the hogs, and exposed to a great loss in the net weight.

3d. That defendant did not make a true return of the net weight, but defrauded plaintiff on that behalf.

4th. That he slaughtered twenty-four more hogs than he accounted for, and improperly cut off parts of others to reduce their weight.

5th. The plaintiff alleges, in what might be called a second count, another contract to deliver fourteen hundred hogs to defendant, at $5.60 per hundred net.

He avers delivery according to contract, and charges defendant with delay in slaughtering them; causing great loss in the weight, and expense to plaintiff in feeding them in the meanwhile.

6th. He charges defendant with taking one hundred other hogs of plaintiff, for which he refused to account.

7th. That in consequence of delay in receiving, many of the hogs died, to the great loss of plaintiff.

Sth. That defendant returned false weights of these fourteen hundred, and cut off parts before weighing.

9th. The plaintiff also sets up a third contract for five hundred hogs, which were delivered, and avers the same delay and consequent injury to plaintiff; and the same frauds in weighing, etc.

To this catalogue of grievances the defendant, in his answer, pleads thirtythree distinct denials of the averments in the petition. A jury was called to try these thirty-three issues, and found a verdict for plaintiff, and assessed his damages. No exception was taken on the trial to the admission or rejection of evidence; no error is alleged in the charge of the court, and a regular judgment was entered on the verdict.

§ 2138. Decision of motion for continuance or change of venue is not subject to review in supreme court.

The only bills of exception were to the refusal of the court to grant a continuance and change the venue, both of which were matters of discretion in the court below, and not the subject of review here.

§ 2139. Under the Iowa code a demurrer is properly overruled when the petition states a substantial cause of action.

The cavils to the sufficiency of the plaintiff's statement, under the name of a special demurrer, were overruled by the court below, and justly, because, the code permits a demurrer only when the petition "by a fair and natural construction does not show a substantial cause of action." As we have already shown, it contains a dozen. The judgment of the court below is affirmed, with.costs.

LEWIS v. GOULD.

(Circuit Court for New York: 13 Blatchford, 216-218. 1875.)

Opinion by JOHNSON, J.
STATEMENT OF FACTS.

The defendants move to set aside the replication upon the ground that the pleading is not authorized by law. It is entirely clear that, if this suit were in the supreme court of the state of New York, the pleading in question would be unauthorized, and might be set aside. The question is whether that is also the law of the United States courts in this district.

§ 2140. Pleadings and practice in the federal courts are to conform as nearly as may be to the pleadings and practice in the state courts at the same time.

The answer to this question is given by section 914 of the United States Revised Statutes, which enacts that "the practice, pleadings and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings and forms and modes of proceeding existing at the time, in like causes, in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding." No language can be more direct or plainer than this to convey the will of the congress that the pleadings in the circuit and district courts shall be conformed to those employed in the state practice," as near as may be." The qualification contained in this last phrase is not to be construed to subvert the command of the statute. "As near as may be" allows only necessary variations from the state methods, growing out of the different organization of the courts, and other similar matters.

No one can doubt that, if the code of procedure of New York had existed as the law of the state in 1789 and 1792, the practice, pleadings and modes of procedure which it contains would, by force of the process acts of those years, have been adopted into and become the law of the circuit and district courts of the United States within this state. Nor is there any more doubt that such was the intent and is the effect of the section in question. The common-law forms of pleading are no longer necessary in the United States courts within the state of New York, nor are they admissible, except as they may be deemed to be substantially a compliance with the requirements of the code of civil procedure of the state as to pleadings. The same view of this statute was taken in Butler v. Young, by Sherman, J., in the circuit court for the northern district of Ohio (7 West. Jur., 59), and the same principles of interpretation were applied to the former process acts. Fenn v. Holme, 21 How., 481; United States v. Keokuk, 6 Wall., 514. The motion to set aside the replication must be granted.

856

HURT v. HOLLINGSWORTH.

(10 Otto, 100-104. 1879.)

ERROR to U. S. Circuit Court, Eastern District of Texas.
Opinion by MR. JUSTICE FIELD.

STATEMENT OF FACTS.-This suit was brought by the plaintiff, in a district court of Texas, to quiet his title to certain real property situated in Galveston in that state. On application of the defendant it was removed to the circuit court of the United States.

The petition, which is the first pleading in a suit according to the practice which obtains in Texas, sets forth that the plaintiff is the owner of the premises; that he purchased them of one Molsberger and wife in June, 1874; that those parties acquired them in December, 1865, and had subsequently, until the sale to the plaintiff, claimed and held them as a homestead; that in April, 1867, certain parties, designated as Marsh, Denman & Co., recovered judgment against Molsberger, in the county court of Galveston, on a debt contracted in 1866, while the premises constituted the homestead of himself and family; and in October, 1873, under an execution issued thereon, the premises were sold by the sheriff of the county, for the sum of $30, to the defendant Hollingsworth, one of the members of that firm, and to him the sheriff executed a deed of the premises, which has been recorded in the county.

The petition avers that this deed is a cloud upon the title of the plaintiff, and prays that the cloud may be removed and his title quieted. The defendant filed in the circuit court an answer to this petition, in which he admits that the plaintiff was in possession of the premises and had obtained a deed of them from Molsberger and wife, who had purchased them in 1865, but denies that they constituted a homestead of Molsberger and family continuously from that time until the alleged sale to the plaintiff, or that they were such homestead when the sale was made by the sheriff to him.

The answer then avers that the defendant became the owner of the premises by his purchase; that the plaintiff wrongfully withholds the possession from him, and the rents and profits, which are of the value of $75 a month. He therefore prays that the title may be declared to be in him, and that he may have judgment for the possession of the premises and the value of the rents. These pleadings were subsequently amended so as to show the value of the property and the amount of its rents, and in some other particulars not material to the question now presented.

The case was considered by counsel and treated by the court as an action at law, and by stipulation made at the December term of 1875 the parties waived a jury trial and submitted "the matters therein, as well of facts as of law, to the court." The evidence was then heard; and at a subsequent term the court gave judgment that the plaintiff take nothing by his action, and that the defendant recover the title and possession of the property, and also the sum of $420, as damages for its use and occupation, and have a writ of possession.

This judgment was subsequently vacated and a rehearing granted, when a motion was made by the plaintiff to transfer the cause, it being one seeking equitable relief, from the law docket of the court, upon the ground that it had been improvidently placed there by the defendant, to the chancery docket, to be there proceeded with according to the rules and practice of the circuit court sitting in chancery; and also a motion to take from the files of the court so much of the answer as purported to be "a cross-suit, reconvention suit, or cross-bill," be