25115. Immaterial errors and defects. The court, in every stage of an action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed, or affected, by reason of such error or defect. [51 v. 57, 2 138; S. & C. 990.]

Judgment will not be reversed for refusal to sustain a motion to separately state and number causes of action, 36 O. S. 43, because the form of action was misconceived, "in case the facts are substantially alleged, which the party was bound to prove on the trial in order to entitle him to a recovery," 1 O. S. 225; because a bad reason was given for a correct judgment by the court which rendered it, 14 O. 28, 37; 4 O. S. 251; 12 O. S. 87, 90; 17 O. S. 374, 384; 13 O. 21; for admission of incompetent testimony objected to at the trial, unless it appears that its admission was prejudicial, 11 O. S. 470; 18 O. S. 543; 22 O. S. 62; for error beneficial to the party seeking the reversal, 13 O. 131; 20. 343; where the defect consists in the omission to aver the performance of a condition precedent in the contract sued on, and it appears from the subsequent pleadings and record that the defendant was not prejudiced thereby, 24 O. S. 345; for an erroneous instruction, where it appears from the record that the party objecting was not prejudiced by it, 31 O. S. 219; where summons and an order for the delivery of specific personal property were issued upon a petition and single affidavit containing allegations sufficient to entitle the party to such order, 38 O. S. 657; where the liability sought to be enforced was on a promissory note, while the cause of action proved was for money loaned or the consideration of the note, 41 O. S. 68; where the court allowed defendant to open and close in a civil action for assault and battery, 37 O. S. 415; where parties on appeal from a justice of the peace proceeded to trial before a jury upon a transcript of the justice, and no objection being taken there was a verdict and judgment, 11 O. S. 692; where, in an action to foreclose a mortgage by a building association, the secretary and treasurer prayed judgment for taxes paid in his own name, and it appeared that the taxes were paid by him for the benefit of the association and with its money, 42 O. S. 73; see 1 C. C. R. 62.

5116. Amendment after demurrer sustained. If the demurrer be sustained, the adverse party may amend, if the defect can be remedied by amendment, with or without costs, as the court in its discretion shall direct. [51 v. . 57, ? 139; S. & C. 990.]

But if no leave to amend be asked for, it is not error to proceed to final judgment against the plaintiff without granting leave to amend, 22 O. S. 159.

25117. Continuance after amendment. When either party amends a pleading or proceeding, and the court is satisfied, by affidavit or otherwise, that the adverse party could not be ready for trial in consequence of the

amendment, a continuance may be granted to some day in term, or to another term of the court. [51 v. 57, ? 140; S. & C. 990.]

1 W. L. M. 351. The application for a continuance is addressed to the sound discretion of the court, 6 Neb. 337. The affidavit to procure evidence must show the testimony which affiant expects will be given by the absent party, 1 Neb. 118. An affidavit that the defendant has been informed that a person absent from the state would swear to certain material facts is insufficient, 6 Neb. 337. Grounds for, see 19 Bull 365.

25118. When party may be sued by fictitious name. When the plaintiff is ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name and description, and, when the true name is discovered, the pleading or proceeding may be amended accordingly; and the plaintiff, in such case, must state, in the verification of his petition, that he could not discover the true name, and the summons must contain the words "real name unknown," and a copy thereof must be served personally upon the defendant. [51 v. 57, 141; S. & C. 990.] .

25119. Supplemental pleading. Either party may be allowed, on such terms as to costs as the court, or a judge thereof, may prescribe, to file a supplemental petition, answer, or reply, alleging facts material to the case which occur subsequent to the filing of the former petition, answer, or reply; but reasonable notice of the application must be given, when the court or judge so requires. [51 v. 57, § 142; S. & C. 990.]

The office of a supplemental pleading is to bring into the record new facts, so that the court may render its final judgment upon the facts existing at the time of its rendition, 90 Ind. 585. It is the only proper method of presenting facts occurring during the pendency of an action, 6 How. Pr. 13; 10 O. S. 372. A petition setting up antecedent facts is not a supplemental petition, 33 0. S. 336. A supplemental petition must be consistent with and in aid of the case made by the original petition, 10 O. S. 365, 372. A new cause of action can not be set up by way of supplemental petition, especially a cause of action to which plaintiff was not entitled when he commenced his action, 2 Hun 643. It can not be filed after final judgment for the purpose of vacating, reversing, or modifying such judgment, 39 O. S. 543, 546. It has been allowed by creditors seeking to enforce the contingent liability of stockholders defendants who, before the commencement of the action, had assigned their stock, 8 Bull 23; in foreclosure, where a secured note matures pending the action, to find the amount due, 2 W. L. M. 599; 7 O. (Pt. 2) 231; in actions by or against representatives or succes

sors in interest of a deceased party, 24 O. S. 182; in proceedings in aid to collect a judgment, if set aside, and a new judgment obtained, 10 O. S. 365; 8 O. 203. But in an action to enforce a lien, neither a supplemental pleading nor an amendment is necessary to recover notes falling due after filing the original petition, where the instrument creating the lien and the petition show that it was given to secure those due and to become due before final decree, 16 la. 422; and in ejectment plaintiff must still rely upon his title originally set out, and can not, by supplemental petition, rely upon one since acquired, 14 S. Č. 434. A supplemental answer takes the place of the former plea puis darrein continuance, and any defense which the party may set up in that plea he may set up by supplemental answer, 16 Abb. Pr. 269, as accord and satisfaction, 12 O. S. 98; bankruptcy, 16 O. 12; defense arising after issue joined in ejectment, 50. 452; payment, 60. 534; though a supplemental answer is not like a plea puis darrein continuance, 4 W. L. J. 1 (see 12 O. S. 98), 'a waiver of defenses before interposed, and is not confined to matters arising since the last continuance, 46 N. Y. 200, 203. The allowance of such an answer is said to be discretionary with the court, 22 Kas. 753; see 72 N. Y. 442; but when the facts sought to be pleaded amount to an entire satisfaction of the cause of action, it is the duty of the court to allow it, 8 How. Pr. 56.

25120. When actions may be consolidated. When two or more actions are pending in the same court, the defendant may, on motion, and notice to the adverse party, require him to show cause why the same shall not be consolidated; and if it appear that, at the time the motion is made, the actions could have been joined, and if the court, or a judge thereof, find that they ought to be joined, the several actions shall be consolidated. [51 v. 57, 22 143, 144; S. & C. 990, 991.]

44 O. S. 346; 15 Bull 386. As where two actions are brought, one upon a note and the other to foreclose a mortgage securing it, 3 W. Law Gaz. 266.

? 5121. What is a motion. A motion is an application for an order, addressed to a court or judge, by a party to a suit or proceeding, or one interested therein. [51 v. 57, 2503; S. & C. 1098.]

A motion is the proper remedy for uncertainty, argumentativeness and informality in a pleading, 14 O. S. 200; 6 O. S. 293; to separately state causes of action, 10 O. S. 441; to strike pleadings from the files, 26 O. S. 659, 662; for judgment on pleadings, 31 O. S. 492; to vacate judgment, 11 O. S. 503; for judgment non obstante veredicto, 3 Bull 54; 6 Rec. 564; for new trial, 5308; to correct mistakes and omissions of clerk or irregularity in obtaining a judgment or order, 5357. Motion to strike out is not the proper remedy for uncertainty, 1 D. 17, 458; nor is demurrer, 29 O. S. 499. A motion can not supply the place of a demurrer,

10 O. S. 501; 6 O. S. 607. It may be made by one not a party, 11 O. S. 516; 25 O. S. 270; generally, 20 Bull 383; 46 O. 8. —.

? 5122. Motion may include several objects. Several objects may be included in the same motion, if they all grow out of, or are connected with, the action or proceeding in which it is made. [51 v. 57, 2 504; S. & C. 1098.]

25123. Notice of motion. When notice of a motion is required, it must be in writing, and shall contain the names of the parties to the action or proceeding in which it is made, the name of the court or judge before whom it is to be made, the place where and the day on which it will be heard, the nature and terms of the order or orders to be applied for, and, if affidavits are to be used on the hearing, that fact shall be stated; and the notice shall be served a reasonable time before the hearing. [51 v. 57, ? 505; S. & C. 1098.]

20 Kas. 370. Parties are bound to take notice of all motions and orders made in court during the pendency of the action, 2 W. L. M. 329, but not after final judgment, Id.

5124. Who may serve notices. Notices of motions may be served by a sheriff, coroner, or constable, or by a disinterested person; and the return of an officer, or affidavit of such person, shall be proof of service. [51 v. 57, 506; S. & C. 1098.]

25125. How service to be made. The service of a notice shall be made as required for the service of a summons, and when served by an officer he shall be entitled to like fees; the service shall be on the party, or his attorney of record, if either is a resident of the county in which the motion is made; and if there is more than one party adverse to such motion, service shall be made upon each party, or his attorney. [51 v. 57, 22 506, 507; S. & C. 1098.]

25126. When notice not required. Motions to strike pleadings and papers from the files may be made with or without notice, as the court or judge shall direct. [51 v. 57, § 508; S. & C. 1099.]

17 Kas. 102; 2 Bates Pl. 966. A motion to strike from the files is waived by pleading over, 37 Ia. 422, or by demurring, 2 C. S. C. R. 80. The practice of making a motion to strike from the files subserve the purposes of a general demurrer is not approved by the courts, 26 O. S. 662. Where objections to the pleading are based not on any irregularity connected with its filing, nor to

any matter pertaining to its form merely, but on its alleged insufficiency in matter of substance, the objection should be taken by demurrer and not by motion to strike from the files, 10 O. S. 501.

DIVISION III. TRIAL.

CHAPTER I.

SUBDIVISION I. THE ISSUE-HOW TRIED.

? 5127. What is a trial. A trial is a judicial examination of the issues, whether of law or of fact, in an action or proceeding. [51 v. 57, ? 262; S. & C. 1020.] ? 5128. What is an issue. Issues arise on the pleadings where a fact, or conclusion of law, is maintained by one party and controverted by the other. They are of two kinds:

1. Of law.

2. Of fact. [51 v. 57, ? 260; S. & C. 1020.]

5207. Parties can not by contract require the court to try their case contrary to established rules of judicial proceedings, 2 O. S. 21; and an agreement of counsel to consider the issues as made up is of no effect, W. 524.

5129. An issue of fact. An issue of fact arises: 1. Upon a material allegation in the petition denied by the answer.

2. Upon a set-off, counter-claim, or new matter, presented in the answer and denied by the reply.

3. Upon material new matter in the reply, which shall be considered as controverted by the opposite party without further pleading. [51 v. 57, ? 261; S. & C. 1020.]

25130. Issues. How tried. Issues of law must be tried by the court (1), unless referred as hereinafter provided; and issues of fact arising in actions for the recovery of money only (2), or specific real (3) or personal property, shall be tried by a jury, unless a jury trial be waived (4), or a reference be ordered as hereinafter provided. [51 v. 57, ? 263; S. & C. 1020.]

1. Issues of law should be disposed of before issues of fact, 5 O. S. 87. Where the facts stated in the petition and the nature of the relief primarily demanded are within the sole jurisdiction of a court of equity, a jury trial is not demandable, 27 O. S. 47. An action to compel the return of an insurance policy assigned under duress is not triable by a jury, 1 C. C. R. 28; nor an action