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COURSE OF THE PLAINTIFF ON RECEIPT OF THE DEFENDANT'S
The first thing to be looked to, by the plaintiff, on receipt of the adverse pleading, is to see whether it be regular in point of form, and, in the case of answer, duly and properly verified. See previous chapter as to formal requisites of pleading. The pleading, if defective, must be returned forthwith, as there pointed out; and any objections, on that or any other formal grounds, must be taken at once, or else the right to do so may be considered as waived. The next point for consideration, where answer is put in, is as to whether that answer does or does not contain an admission that part of the plaintiff's claim is just, or that the defendant has property in his hands belonging to another party, on which admission an application may be grounded, that he may be ordered to satisfy such admitted portion, or to hand over or deposit such property admitted to be in his hands, as provided by the recent amendment in sec. 244.
The answer should next be carefully examined, with a view to ascertain whether it contain any allegations liable to be stricken out for redundancy, or irrelevancy, or which the plaintiff may require to be made more definite or certain by amend. ment, under the provisions of sec, 160.
This subject has also been fully entered upon in the introductory chapter of this portion of the work. The proceeding for that purpose must, as there mentioned, be taken speedily, and before the time originally allowed for replying expires, or the right to take it will be gone.
The above proceeding refers more peculiarly to the insertion of irrelevant matters in a relevant defence, and to the purgation of the record in this respect; but it is also possible that the whole of the answer, or the whole of any ground of defence taken therein, may be sham or irrelevant. In this case the remedy of the plaintiff is different. A motion under section 160 will not meet the case, but the application must be made under
section 152, as commented upon at the close of the last chapter. It is probable, as there remarked, that this line of proceeding may become more frequent henceforth, than it has hitherto been, under the unamended section, particularly with reference to irrelevant defences, portions of an answer partly relevant. If the whole answer be stricken out as irrelevant, the plaintiff's course appears to be to sign judgment thereupon, under sec. 246, as for want of an answer; on affidavit, that no answer has been re. ceived except the one stricken out: nor can the defendant put in any further defence under such circumstances, unless on leave of the court specially obtained, inasmuch as, the answer being stricken out, his right to amend as of course is gone.Aymar v. Chase, 1 C. R. (N. S.) 141.
If, though not sham or irrelevant, the demurrer or answer be frivolous, the course then to be pursued will be to move for judgment, under the provisions for that purpose contained in sec. 247, and which run as follows:
$ 247. If a demurrer, answer, or reply be frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or out of the court, for judgment thereon, and judgment may be given accordingly.
The form and mode of entry of judgment so obtained, will be hereafter considered, and the cases in relation thereto cited, under the head of judgment by default. A motion under that section is absolutely necessary, for obtaining relief under the above state of circumstances, for, however frivolous the pleading may be, it cannot be disregarded as a nullity.- Corning v. Haight, 1 C. R. 72 ; Hartness v. Bennett, 3 How. 289, 1 C. R. 68 ; Swift v. De Witt, 3 How. 280 ; 6 L. 0. 314; 1 C. R. 25; Noble v. Trowbridge, 1 C. R. 38; Stokes v. Hagar, 7 L. O. 16 ; 1 C. R. 84. Nor can the plaintiff so treat a demurrer, put in jointly with an answer to the same cause of action, though either the demurrer or the answer, if so put in, is clearly bad. His only course, under those circumstances, will be to move to strike out either the demurrer or the answer, or that the defendant may be compelled to elect by which defence he will abide.-Spellman v. Weider, 5 How. 5; Slocum v. IV heeler, 4 How. 373.
In Stokes v. Hagar, above cited, it was held that a motion, under the above section, might be made after reply served, but this doctrine seems to be more than doubtful, and cannot be re
lied on in practice. The far sounder view appears to be that, by a reply, the plaintiff will be held to have admitted the sufficiency of his adversary's pleading: and that he cannot make any other of the applications before referred to, after replying, is clear, under rule 43 of the supreme court, and had been held before in the cases of Isham v. Williamson, 7 L. 0. 340, and Corlies v. Delaplaine, 2 Sandf. C. R. 680 ; 2 C. R. 117.
What will or will not be held to be a frivolous pleading, has been before considered. A merely insufficient pleading must be demurred to, and cannot be stricken out as frivolous, though clearly bad for insufficiency. See Scovill v. Howell, 2 C. R. 33, before cited. It is only where the pleading is palpably groundless and untenable, and put in for the purposes of vexation and delay, that the court will exercise the high power of expunging it from the record.— Neefus v. Kloppenburgh, 2 C. R. 76. See also Smith v. Shufelt, 3 C. R. 175; Seward v. Miller, 6
6 How. 312; Lord v. Cheeseborough, 1 C. R. (N. S.) 322. Nor will an answer be so stricken out, if it deny any one material allegation in the complaint, however insufficient it may be in other respects.-V. Davis v. Potter, 4 How. 155, 2 C. R. 99, and numerous other cases, before cited, under the head of answer. In order to ground such an application, and warrant a judgment under the above section, “ the case should be entirely clear, palpable on the statement of the facts, and requiring no argument to make it more apparent."--Rae v. The Washington Mutual Insurance Company, 6 How. 21.
The application to strike out a pleading as frivolous, must be for“judgment,” under the terms of section 247, as above cited. It cannot be granted on a notice of motion that an “order" will be applied for.-Darrow v. Miller, 5 How. 247; 3C. R. 241 ; Rae v.
; The Washington Mutual Insurance Co., above cited. See also Bentley v. Jones, 4 How. 335,3 C. R. 37; and King v. Stafford, 5 How. 30. No affidavit is necessary for the purpose of that application, which is made upon the pleadings alone ; though it would
; be prudent to be prepared with formal proof of service of those pleadings, in order to the bringing on of the motion, in case the opposite party should not appear. See Darrow v. Miller, above cited.
In Woodworth v. Bellows, 4 How. 24, cited in the last chapter, judgment was given for the plaintiff at once, upon an answer merely directed to the adjudication of equities between
co-defendants, and not setting up any defence whatever as against the plaintiff's right to relief.
The form of a notice of motion for judgment as above, will be found in the Appendix. Of course, the above observations, and the cases above cited, are equally applicable to the case of a frivolous reply, and to the application for judgment thereon, as indeed expressly provided by the section in question.
Objections of the above nature cannot be split up into several motions. They must all be embodied in the original notice, or relief will not be granted on a subsequent application. Thus, in Desmond v. Woolf, 6. L. 0. 389, 1 C. R. 49, a motion to take a demurrer off the file as frivolous was denied, a previous motion to set it aside as irregular having been made and failed. All possible objections to a pleading should accordingly be well considered, before moving to set it aside on any one ground; and, if more than one appear, the demand for relief should be shaped accordingly, and with sufficient comprehensiveness.
If none of the above objections exist to the defence set up, or if any of them be taken and fail, the plaintiff, before taking the decisive course of either demurring or replying to that defence, should carefully look over the complaint a second time, and consider whether any new matter alleged by the defendant has so far altered the statement of circumstances under which issue will have to be joined, as to render it expedient for him to amend his complaint; or whether any other reasons exist which may render such a course advisable, such as omissions on his part to put his case in the best possible light, facts subsequently come to his knowledge, or other considerations of an analogous nature. The present is the point at which a full consideration of this subject is peculiarly fitting, because, if he permit the twenty days allowed for reply after the service of his adversary's pleading to elapse without amending, it will be no longer competent for him to do so as of course thereafter, and a special application to the court for leave for that purpose will be necessary.-V. Snyder v. White, 6 How. 321, and other cases before cited. Of course the above period of twenty days is spoken of, with the necessary reservation as to the effect of service by mail, where admissible, in doubling that period. The effect of an amendment, in putting back the case, as it were, to the period of the original service of the complaint, and reopening it, both with reference to the nature of the answer which may be put in by the defendant, and the time which will be allowed to him for that purpose, will not be forgotten.
In Groshons v. Lyons, 1 C. R. (N. S.) 348, it was held that, where an answer of another action pending has been put in by the defendant, it will be irregular for the plaintiff to reply to such answer; and that the proper practice will be for him to apply at once for a reference upon that particular point, the result of which will at once dispose of the preliminary question. See, also, Farmers' Loan and Trust Co. v. Hunt, 1 C. R. (N. S.) 1.
If the plaintiff do not consider any amendment to be necessary, and is satisfied to let the ca
go to issue on the pleadings, as they are, the defendant's demurrer, when taken, will have to come on for argument, as an issue of law, in due course, and in the first instance, and before the trial of issues of fact, if such issues be raised collaterally in other portions of the pleadings. The measures for this purpose, will be hereafter considered.
A question is raised in the Farmers' Loan and Trust Company v. Hunt, 1 C. R. (N. S.)1, as to whether the same course ought not to be pursued, where the defendant has demurred by answer ; but the soundness of this view appears doubtful, inasmuch as, an issue of fact being necessary to be tried in this case, in order to make the objection itself apparent, there seems no reason why the whole of such issues should not be disposed of simultaneously. If the facts necessary to ground the demurrer be admitted by the reply, the question might probably then be held to become, de facto, an issue of law, and to be triable as such.
If the defence be by answer, the first point to be considered is as to whether such answer may, or may not be demurred to for insufficiency, under the power given for that purpose, in section 153; the second, as to whether, under the provisions of that section, it does or does not require a reply: both which subjects, and the course to be adopted thereupon, will be considered in the next chapter.
Before proceeding, however, to this branch of the subject, it may not be superfluous to remark that, if the defence set up be so complete as to leave the plaintiff no chance of success, it is competent and would be highly advisable for him to discontinue his cause, at this point, and before issue is finally