Code Remedies: Remedies and Remedial Rights by the Civil Action According to the Reformed American Procedure; a Treatise Adapted to Use in All the States and Territories where that System Prevails

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Little, Brown,, 1904 - 983 páginas
 

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Abilene Nat Bank v Nodine 1894 Adkins v Adkins 48 Ind
12
No change in remedies or remedial rights
13
Struggle in establishing rule Missouri doctrine
19
SECTION SECOND
27
Section Page
30
Where equitable remedy only is demanded and legal remedy only
36
Section Page
38
SECTION THIRD
42
Ore 53 37 Pac
47
Illustrations and examples
48
SECTION FOURTH
55
Conclusion
58
Another class of actions herein Partner against copartner
64
SECTION FIFTH
70
CHAPTER SECOND
77
Section Page 57 Same subject
83
Same subject
84
Statutory provisions Interpretation Two views
85
More radical statutes in a few States Outline of treatment of parties
86
SECTION SECOND THE REAL PARTY IN INTEREST TO BE MADE PLAINTIFF 62 Statutory provision as to real party in interest
87
Principal effect of statutory provision
88
Equitable assignment Same rule Illustrations
89
Effect of statute in case of negotiable instruments Conflict in opinion
91
New York decisions
93
Rule in other States
94
Absolute assignment made conditional or partial by contemporane ous and collateral agreement
96
Instances of action by assignee as real party in interest
99
Same subject
100
Joinder of assignor in some States
101
Assignment pendente lite Substitution of assignee
102
Assignment of part of demand Action by grantee on covenants
103
Suing to the use of another Beneficiaries under express trusts
104
Actions by third persons for whose benefit contracts have been made
105
Commercial paper Action by legal promisee
112
Section
113
Instances of real party in interest Actions on bonds actions by principals and agents etc
114
Particular injury to plaintiff essential in certain cases People cannot maintain action to redress private wrong
117
Special provision in New York respecting action by grantee of land held by disseisor at time of conveyance Partnerships
119
SECTION THIRD THE EFFECT OF AN ASSIGNMENT OF A THING IN ACTION UPON THE DEFENCES THERETO 82 Statutory provisions res...
120
Defences and counterclaims distinguished
121
The rule as existing prior to the codes stated Assignee takes subject to equities and legal defences 122
122
Doctrine applies also to second and subsequent assignees
123
Extension of doctrine of estoppel to all things in action making
127
SECTION FOURTH
141
Same subject New York cases
147
Other classes of trustees
153
Actions by general guardians
159
In Missouri and California Statute held to apply only
162
Recapitulation of judicial views Cases in which there is
175
Page
179
Effect of misjoinder of parties plaintiff Common law
181
New York cases Criticism
189
Section Page
194
Decisions under the codes
195
Surviving partners
203
Legal actions by persons having joint rights arising from con tract
204
Criticism of cases holding that a joint promisee cannot be made a defendant
209
Legal actions by persons having several rights arising from con tract
210
Legal actions by persons having joint rights arising from personal torts
214
Legal actions by persons having several rights arising from per sonal torts
215
Actions in special cases
216
Actions by parents or guardians for the seduction of or injury to their children or wards
219
Actions by and between Husband and Wife 151 Common law and equity rules
221
Wife must sue alone in some States
224
Result of New York statutes
225
Actions for personal torts and for fraud and deceit
226
Actions for personal torts to wife
228
Actions for torts to wifes person in New York and States having similar statutes
230
Actions for torts to wifes property
231
Tort actions between husband and wife
232
Desertion by husband as affecting wifes capacity to sue
233
Equitable Actions 161 Grand principle underlying equity doctrine Scope of inquiry
234
Equity rules more explicit respecting defendants than plaintiffs Two classes of coplaintiffs in equity
235
Statement of fundamental principle and what it assumes Special subject of inquiry stated
237
Subordinate general principles herein Where actual plaintiff holds only equitable right or title holder of legal right or title should be made coplaintiff
238
Case of suits by assignees Change effected by codes
239
Case of suits for administration of decedents estates
240
Rule applicable to persons having legal demands arising out of same subjectmatter
241
Doctrine extends to actions relating to personal property Illustra
244
Suits to redeem
246
Case of suits by executors and administrators and suits by
253
Case of creditors suits
259
Miscellaneous cases Joinder of holders of separate liens Creditors
265
Consequences of nonjoinder of defendants
273
recommendation
280
Contribution
282
Actions by taxpayers
283
Actions to redeem
284
Actions against owners or possessors of chattels In actions
286
Survivorship In States containing no special statutory provi
292
Actions upon contract several liability No change in common
299
Page
302
Common carriers
305
Joinder in case of substituted debtor
311
Section Page
312
Distinction between necessary and proper parties illustrated
318
Variations in practical rules due to differences in local law
324
Personal representative of owner of mortgaged premises neces
330
Joinder of wife of mortgagor in foreclosure of purchasemoney
336
Section Page 245 Assignee of judgment debtor a necessary party Where legal title is in third person and equitable ownership in debtor
341
Assignees of separate parcels of property should be joined Reason herein
342
Actions relating to the estates of deceased persons
343
Illustrations
344
When administrator is not a necessary party Illustration
345
When legatees and next of kin are neither necessary nor proper parties
346
When a different rule applies
347
Trusts Actions to enforce performance of express trusts Trus tees and survivors necessary parties
348
Joining beneficiaries Distinction between actions in opposition to and in furtherance of the trust
349
Implied trustee necessary party in actions to reach property
352
Actions against corporations and stockholders and between part ners Introductory
354
Judgment creditors Stockholders
355
Corporation officers and assignee
356
Accounting by one partner against another and by surviving partner
357
Actions for specific performance Conflict of opinion herein
358
Holder of adverse claim Personal representative of deceased vendor Heirs New York and Iowa cases
359
Prior mortgagee Agent of vendor Person making redemption
361
Illustrations of action and its form
363
Case in New York
364
Actions for partition Their general purpose General creditors Holders of liens on entire tract
365
Holders of liens on undivided shares
366
Different rule where object of suit is to sell land and divide proceeds
368
Joinder of wife of tenant in common Administrator of deceased tenant in common In New York
370
In Indiana and California
371
tions 244
372
Rescission and cancellation
373
SECTION SEVENTH WHEN ONE PERSON MAY SUE OR BE SUED ON BEHALF OF ALL THE PERSONS INTERESTED 379 380 382 383
379
Authors analysis of language of statute Two distinct cases Essential elements of each case
380
Necessary allegations herein
382
Judicial interpretation of statute Order pursued in examination of decided cases
383
Statute reenacts equity rule Must be some connection between parties represented in both cases Test
384
Applicable both to legal and equitable actions Number of parties in second case
385
Particular instances
386
Same subject
387
Nature of such action What essential on part of those not named in order to become parties
388
Equity rule Rule in Kentucky 295 Question whether one has made himself a party may present itself in two aspects
389
Same subject 297 Conclusion of author from discussion
391
Necessary averments of complaint or petition 385 386 387 388
392
SECTION EIGHTH
393
Two classes of statutory provisions compared and distinguished
396
Turningpoint of decisions herein Illustrations
397
Forms of contract included in statute Illustrations Form
398
Form of judgment continued Discussion by Wisconsin Supreme Court 305 Joint and several liability may be treated by promisee or obligee as severa...
401
Section Page 306 Case of guarantor and principal debtor Weight of authority Rule in Iowa
402
When liability arises from same instrument
403
INTERVENING 308 Two types of code provisions herein
404
Statutory provisions of first form
405
Statutory provision of second form
406
Three transactions herein First of said transactions Moving party
407
Second of said transactions Scope of statutory provision herein Moving party
408
Third of said transactions Interpleader How distinguished from other of said transactions
409
Bringing in additional parties When the court must act
410
Same subject
412
Same subject Limitations herein
413
Examples and illustrations Pleadings Rule in Indiana in refer ence to assignors
414
Authors suggestions herein
415
Intervention Need not be necessary party Discretion of court Time of application
417
Additional illustrations
419
The Iowa and California system of intervening Illustrative examples
420
393
421
Authors statement of the doctrine
427
Concluding remarks
428
The Formal Statement of the Cause of Action by the Plaintiff SECTION FIRST THE STATUTORY PROVISIONS 326 Introduction
430
Statutory provisions applicable to all pleadings
436
396
439
Order of proposed treatment
442
JOINDER OF CAUSES OF ACTION
443
Section Page 445 Redundant immaterial and irrelevant allegations and the mode
445
Departures from original type
449
motion
455
Cause of action and remedial right differentiated Examples
460
Lamberson 1898
466
Two or more distinct rights each invaded by distinct wrongs
467
Section Page 354 Same subject
475
Cases in Missouri
476
Summary
477
Controlling words herein Necessity of judicial definition of
478
Language of Comstock J and authors criticism
479
Observations made by courts respecting meaning of these terms
481
Authors criticism
482
Same subject
484
Same subject
485
Same subject
486
Jones v Steamship Cortes o
487
Observations of the author Two alternatives
488
Same subject
489
Meaning of subject of action
492
Examples of causes of action held to have arisen out of the same transaction
494
Examples of causes of action held not to have arisen out of the same transaction
497
Same subject
512
Section Page 383 Authors criticism of Calverts theory
513
Application of Calverts analysis to the language of the codes
514
Joinder of causes arising out of contract Illustrations
515
Additional illustrations
516
Causes for injuries to property Illustrations
517
Malicious prosecution and slander or libel
518
Special cases
519
Illustrations from Indiana and California
520
Cause of action upon contract cannot be joined with one to re cover damages for a tort Illustrations Authors criticism
521
Illustrations
522
Cause of action against one in personal character cannot be united with one against him in representative character Reason Authors criticism Illustrati...
523
Some unclassified cases Authors criticism
525
Grouping of actions for injuries to the person in some States Illustrations
526
Holding of Wisconsin court in action to quiet title
527
The equity system of pleading
528
The commonlaw system of pleading Introductory
531
Technicality of the system
532
Essential principles and elements of commonlaw pleading
533
Same subject
534
History of the action of assumpsit
536
Outline of proposed discussion of reformed procedure
539
The theory generally adopted
541
Manner of averring material facts
542
The term cause of action 517
547
True signification of the term
548
Section Page 414 Complete statement of entire cause of action would include legal rules and rights and duties
549
Term as applied to legal actions
550
Term as applied to equitable actions
551
Nature of the facts constituting a cause of actiop when term is applied to both legal and equitable suits
552
Elements omitted and retained when cause of action is set forth in the complaint
553
Cases where facts showing primary right are omitted because presumed
554
Only ultimate facts are to be alleged
555
The doctrine as applied to equitable suits
557
This distinction between material facts in legal and equitable actions sustained by the courts
559
Facts should be alleged as they actually existed or occurred not their legal effect
560
Cases supporting doctrine that facts not legal conclusions are to be stated
561
Same subject
563
Cases supporting doctrine that material not probative facts are to be stated
565
Hotchkiss 97 N Y 395 865 78 Minn 48 80 N W 838 421 661
566
Instances of allegations approved or condemned by the courts
570
Same subject
572
Same subject
573
Attitude of courts in instances cited largely due to liberal rule of construction
576
Doctrine that facts pleaded should be stated as they occurred or existed Two questions presented
577
Case of Booth v Farmers and Mechanics Bank N Y
580
Conclusions
581
Criticism of Booth v Farmers and Mechanics Bank
582
Common counts under the codes
584
Use sanctioned also where obligation is express
586
Criticism of doctrine
588
Further rules of pleading to be considered Outline of dis cussion
590
Judicial approval of liberal construction
591
Insufficient imperfect incomplete or informal allegations and the mode of objecting to and correcting them Distinction between imperfect and wholly...
595
Demurrer or dismissal of petition at the trial proper when allegations are wholly deficient
600
Statutory provisions Two groups Special provisions of Indiana
602
397
606
of objecting to and correcting them Distinctions
609
Motion not demurrer proper method of objecting to superfluous allegations
611
The doctrine that the cause of action proved must correspond with the one alleged Degrees of variance between allegations and proof
613
Consequences of different degrees of variance
614
Instances where variance has been held immaterial
616
Instances of complete failure of proof
620
Examples of fatal disagreement between cause of action pleaded and proved
621
Variance fatal where cause of action in tort alleged and one in contract proved
623
How nature of cause of action is determined Illustrations of causes ex contractu
627
Illustrations of causes ex delicto
629
Further examples of variance where tort is alleged and contract proved
630
Amendments allowed by the code
632
Conflict of authority on right to amend by substituting different cause of action
634
398
638
New procedure makes no change in doctrine of election
646
Classes of cases where election is allowed Conversion Conflict of authority
648
Actions against common carriers for loss or injury to goods Other cases
650
Principle which determines when a promise is implied
651
Method of indicating election Averment of promise as a test
652
No difficulty where promise is express Summons suggested as means of indicating election in case of implied promise
653
SECTION FOURTH TAE FORM OF THE COMPLAINT or PETITION 465 Introductory
656
Separate statement of different causes of action Inducement and prayer need not be repeated
657
Rule as to statement of same cause of action in different counts
659
Effect of demurring to entire complaint when made up of several counts Joint demurrers by two or more defendants
660
Admission by failure to deny
662
Defective complaint aided by averments in answer
663
Prayer for relief
665
472
691
Statutory provisions respecting union of defences
692
Same subject
696
Statutes providing for setoff
698
Statutory provisions as to crosscomplaints and sham answers
700
Statutes allowing demurrer to entire answer or to separate defence or counterclaim
701
Same subject
702
Miscellaneous statutory provisions
703
Liberality of the codes in furtherance of justice
704
Outline of treatment of code theory of defence
705
Two kinds of answer depials and new matter
706
Questions of substance
707
Purpose of demurrer Special demurrer abolished Motion sub stituted
708
cases
710
Conflict of decisions
714
Same subject
716
Defects of form are curable by motion
717
Defects of form are waived by neglect to move and going to trial Test of formal defects
719
Case of Simmons v Sisson
720
Additional cases
721
Doctrine that defects of substance are waived by failure to demur
723
Case of Lefler v Field
724
Partial defences
725
Partial defencés should be pleaded as such
726
Criticism of foregoing rule
727
SECTION THIRD Section THE DEFENCE OF DENIAL Page 501 Species of denial
728
Outline of proposed treatment
729
Issuable facts as distinguished from evidentiary facts and from conclusions
731
Illustrative case
733
Allegations admitted by failure to deny
734
Negatives pregnant How they may arise
737
Illustrations
738
Illustrations
739
Conflict of authority as to whether a negative pregnant raises an issue
741
The better doctrine
742
Pleading new matter equivalent to a denial
743
Remedy for such a denial is by motion under the codes
744
Where answer contains general denial and also a special defence of new matter equivalent to general denial
745
Combination of general and argumentative denials
746
Practice in Indiana in respect to argumentative denials
747
General denials of all allegations not otherwise admitted or re ferred to
748
Proper distinction to be observed between general and specific denials
749
Difficulty arising from this form of answer
750
Facts not conclusions of law should be denied
752
Illustrations
754
Denials of knowledge or information Formula prescribed by statute should be followed
755
When a denial of knowledge or information is not allowed
757
Outline of proposed treatment of issues raised by denials
759
The general denial McKyring v Bull
760
Further illustrations
761
Necessity of reply depends upon nature of defence
763
39 Same subject
764
Same subject
765
Construction adopted in California
766
Twofold office of general denial No exact statement possible of particular defences admissible under it
767
Actions concerning lands
768
Only material averments put in issue by general denial
769
Only issuable facts are material Test to distinguish them from evidentiary facts
770
Allegations of legal conclusions not controverted by general denial
771
General nature of evidence admissible under denials
772
Evidence proper under denials may be affirmative or negative
773
Distinction between general issue and plea of confession and avoidance at common law not the same as that between general denial and new matter u...
774
Same subject
775
Particular defences admissible under the general denial In actions for compensation for services
776
In actions for negligent injuries
777
Assignment want of consideration etc
778
In actions for conversion
779
In actions to recover possession of goods 750
780
In actions to recover possession of land
781
In actions in which malice is an essential ingredient
782
In actions for specific performance
783
In actions on covenants and judgments
784
Special statutory provisions as to denying existence of corporation and partnership
785
Special statutory provisions as to denials in actions on written instruments
786
General denial cannot be struck out as sham
787
SECTION FOURTH THE DEFENCE OF NEw MATTER 562 Introductory
788
Further illustrations
790
Averments of new matter as basis for affirmative relief
791
The General Nature of New Matter Defences in Mitigation of Damages and in Abatement 566 Introductory
792
New matter as confession and avoidance
794
Defence of illegality
810
399
818
Suggested method of pleading specific denials Commonlaw
825
401
830
Same subject
832
Counterclaim to be compared with crossdemands of former system
838
Mere defences distinguished from setoff or recoupment counter
844
Implies an opposing claim Limitation herein
851
Application of doctrine Limitation established by New York
859
The Parties in their Relations with the CounterClaim
868
Section Page
871
Several judgment between some of the parties Inquiry presented
878
Counterclaim may fail for want of necessary parties especially
884
Holley 12 How Pr 326 584 Ainsley v Mead 3 Lans 116
887
Is counterclaim possible in action to recover possession of chattels ?
890
Case of Scheunert v Kaehler Criticism
896
Cannot defeat counterclaim by choice of form of action Thomp
900
The phrase connected with Connection must be immediate
906
Classification and arrangement of cases to be cited
912
Same subject
919
Construction of the phrases subject of the action connected
925
CounterClaims Embraced within the Second Subdivision of the Statutory
928
A judgment against
934
Form of verdict finding and judgment
940

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Página 150 - ... Every action must be prosecuted in the name of the real party in interest, except that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A person with whom or in whose name a contract is made for the benefit of another is a trustee of an express trust, within the meaning of this section.
Página 85 - The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights ; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in.
Página 170 - All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this article.
Página 83 - Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one,' who should have been joined as plaintiff, cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint...
Página 7 - The distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and, there shall be in this State hereafter, but one form of action, for the enforcement or protection of private rights and the redress or prevention of private wrongs, which shall be denominated a civil action.
Página 301 - Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff...
Página 83 - ... when the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.
Página 443 - The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect.
Página 407 - ... notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount of the debt, or delivering the property or its value to such person as the Court may direct ; and the court may, in its discretion, make the order.
Página 443 - The court may, before, or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect...

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