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6 O. S. 254. Prosecution must be close and continuous, 14 O. 109; 28 O. S. 181. Purchaser of subject matter of suit acquires no interest as against plaintiff's title, 3 0. 541. Supplemental bill is a continuation of lis pendens, 8 Ó. 203; 10 O. S. 365.

25056. Lis pendens as to suits in other counties. When any part of real property, the subject matter of an action, is situate in any county or counties other than the one in which the action is brought, a certified copy of the judgment in such action must be recorded in the recorder's office of such other county or counties, before it shall operate therein as notice so as to charge third persons, as provided in the preceding section; but it shall operate as such notice, without record, in the county where it is rendered; but this section shall not apply to actions or proceedings under any statute which does not require such record. [51 v. 57, ? 79; S. & C. 966.]

CHAPTER VII.

PLEADINGS.

SUBDIVISION I.

2 5057. Forms and rules of pleading.

The forms of pleading in civil actions in courts of record, and the rules by which their sufficiency shall be determined, are those prescribed in this chapter. [51 v. 57, § 83; S. & C. 968.]

See & 4971.

? 5058. Definition of pleadings. The pleadings are the written statements by the parties of the facts constituting their respective claims and defenses; all fictions therein are abolished, and the title of a cause shall not be changed in any of its stages, except when the defendant prosecutes error. [51 v. 57, 22 82, 115, 116; S. & C. 968, 984.]

25059. What pleadings allowed. The only pleadings allowed are

1. Petition.

2. Demurrer.

3. Answer, which, when affirmative relief is demanded therein, may be styled cross-petition.

4. Reply. [54 v. 91, 2 84; S. & C. 968.]

Cross-petition. A cross-petition may be contained in the answer without any formal designation. An answer with prayer is a

cross-petition, 7 O. S. 322; 6 O. S. 207. Plaintiff against whom an answer demanding "affirmative relief" is filed is a defendant to a cross-petition, and has until third Saturday after filing to answer it, 40 O. S. 344. It is not necessary to entitle the defendant to set up in his answer a claim to relief by way of crosspetition that the answer should contain a denial of the allegations of the petition, but it may consist of the statement of purely affirmative inatter, 20 O. S. 208. When, upon motion of the defendant, additional parties are brought in as defendants, it is error to grant relief against them on default in favor of the defendant making the motion in the absence of a cross-petition asking relief, 12 O. S. 402. Defendant in error may file a cross-petition asking a reversal of the judgment for errors prejudicial to him, 22 O. S. 516; without leave 35 O. S. 80. When original action and not cross-petition proper remedy, 26 O. S. 652. Demurrer to reply to cross-petition puts in issue the question whether the matter set up in the answer is proper subject of cross-petition, Id. Reply to cross-petition may plead set-off, 1 C. S. C. R. 259. Appeal may be had on equitable counter-claim before issue at law disposed of; see 17 O. S. 596; 26 Id. 426, 514; 33 Id. 16; 30 Id. 50. When the issues presented by a cross-petition are complicated and important, the case is a proper one to be docketed as a separate action, 2 D. 286, 296. A motion to a cross-petition separately docketed as a distinct case can only be granted where there is a misjoinder of actions and a demurrer therefor has been granted, 2 Bull (Sup.) 5. When summons necessary, 10 W. L. J. 162; 3 C. C. R. 144.

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2 5060. Petition. Contents. The first pleading on the part of the plaintiff shall be the petition, which must contain:

1. The name of the court and the county in which the action is brought, and the names of the parties, followed by the word "Petition."

2. A statement of the facts constituting the cause of action, in ordinary and concise language.

3. A demand of the relief to which the party supposes himself entitled; if the recovery of money is demanded, the amount shall be stated; and if interest is claimed, the time for which interest is to be computed shall be also stated. [51 v. 57, 285; S. & C. 969.]

The name of the court and the county in which the action is brought, must be stated, 15 How. Pr. 336; 14 Kas. 101. An omission or defect in this particular should be taken advantage of by motion, 27 Ark. 148; 15 How. Pr. 336; as well as an omission of the word " "petition "in the caption, 1 H. 40. The full names of the plaintiffs and defendants should be given in the title, Bliss Code Pl. 145; and if given in the title, they need not be repeated in the petition, and may be afterwards referred to as plaintiffs and defendants, 13 Neb. 409; Bliss Code Pl. 145. The full names of partners must be stated in actions by and against a partner

ship, Bliss Code Pl. 145; and where they are given in the title, it is not necessary to repeat them in the petition, 13 Neb. 409. It is not absolutely necessary that the title describe the parties as partners, and give the partnership name, if the facts appear in the body of the petition, though it is the better practice to designate them in the title, Bliss Code Pl. 145. Where parties sue in a representative capacity, the fact should be stated in the title, or in the body of the petition, 8 N. Y. 472; 11 How. Pr. 11. The representative capacity is designated by the use of the word "as" or its equivalent. 2 Abb. N. C. 238; 62 N. Y. 639. The omission of the word "as" is not, however, conclusive when the representative capacity is disclosed in the body of the petition, 94 N. Y. 302; 73 N. Y. 292. On the other hand, it is held that they must describe themselves in the title and body of the petition as representatives, and must distinctly aver that they are such, or sue in their representative capacity, 10 Kas. 206; 1 W. L. M. 155.

Facts are to be stated positively, 1 D. 159, and not on information or belief, 1 O. S. 504; 13 O. S. 228. An objection to this mode of statement can not be raised by demurrer, 13 O. S. 228; but the defendant may deny in his answer that he has knowledge or information of the facts stated in the petition, 11 O. S. 183; 2 D. 223.

Consistency is required as a rule of pleading. Pleadings, containing inconsistent statements, are construed most strongly against the pleader, 29 O. S. 655; 15 Kas. 41. Only such causes of action can be united as are consistent with each other, 2 D. 584; 97 N. Y. 245. A demand for relief and for a judgment for a specified sum are inconsistent, 10 How. Pr. 445; a claim for conversion and for delivery of the same property, 7 How. Pr. 246; for rent and for use and occupation, 9 Minn. 100. Plaintiff can not seek to affirm a contract and to set it aside, 16 O. S. 129; nor seek a forfeiture of a lease for non-payment of rent and judgment for rent, 2 D. 574, 585. An election must be made between inconsistent claims, 1 H. 217. The objection is reached by motion, 30 O. S. 600; unless the inconsistency amounts to a misjoinder when demurrer lies, 2 D. 574, 584; but the rule does not require a party seeking to recover upon two grounds, both of which can not be true, but he does not know which one, to stand upon one or the other. He may state them as separate causes of action, and in the alternative, in one petition, 9 Bull 355; 16 Bull, 399. So where a party has one or two defenses, and can not, with certainty, state either one, he has been allowed to state them separately; as where a party, being charged upon a promissory note, answered, first, that he did not sign the note, and, second, that if he did sign it, the signature was obtained by fraud, 29 O. S. 78; or that there was no consideration therefor, and he can not be compelled to elect on which of the two defenses he will proceed to trial, 30 O. S. 600. In an action against a railroad for killing a horse, counting on neglect to keep fences in repair, and negligently running its train, the court overruled a motion to compel plaintiff to elect, saying that the addition of a tort to a separate and distinct act, in violation of a contract, did not deprive the injured party of the right to complain at the same time of both wrongs, 41 O. S. 233. In an action against a corporation, by the holder of a certificate of stock, issued by the secretary of the corporation, for the repudiation of such certifi

cate, the petition averred, first, that the certificate was genuine and valid, and second, that if the certificate was an overissue it was such by the fraud and neglect of the corporation, and it was held that plaintiff might attempt to sustain either or both of said causes of action, 11 Bull 86; see 10 Bull 142.

Conclusions of law must not be pleaded, as that an assessment is illegal, 44 O. S. 51; that an act is contrary to statute, 13 Barb. 209; that a contract is void for want of consideration, 58 How. Pr. 426; that plaintiff was compelled to pay a sum of money, 41 Barb. 341; 41 N. Y. 619; that a party is not entitled to a thing. 10 How. 377. Allegations of duty, 31 O. S. 555, of indebtedness, 5 Bosw. 645, of fraud, Bliss Code P1. 211, are conclusions of law, but not allegations of negligence, Id; 80 Ky. 84. An allegation that a contract is not binding, or a party not liable, is a conclusion of law, 34 O. S. 450, 467; that defendant was bound by law to fence, 31 O. S. 555; that a note is "not outstanding," 29 O. S. 13, or that it is "not in existence," 32 O. S. 449. 'Nothing due thereon" is a concluson of law, 29 O. S. 13, and that an "injury will be irreparable," 31 O. S. 420. Conclusions of law are not admitted by demurrer, 37 O. S. 402; 33 O. S. 32; nor by failure to deny, 31 O. S. 555.

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Consideration must be averred in an action on a contract, 37 Barb. 152. This is the general rule, with the exceptions that it need not be alleged in actions on instruments under seal, 13 O. 68; W. 221; upon a promissory note or bill of exchange, 1 O. 115; where the instrument upon which the action is brought purports to be "for value received," 16 O. 1, and in pleading under 2 5086.

Corporate existence, it would seem, must be pleaded, 40 O. S. 517. În 22 O. S. 159, it was said, "our courts will not take notice of the existence of a foreign corporation; " but in 26 O. S. 562, "that the code does not require the title of the plaintiff to sue to be more specifically set out than was required at common law." In 40 O. S. 517, it was said, "the averment, while it was necessary' was waived by going to trial without objection, and was supplied by the allegation in the answer that the defendant below contracted with the plaintiff in its corporate name." The requirements of the N. Y. Code, Civ. Pro. 1775, are that the petition must aver that the plaintiff is a corporation, whether it is a domestic or foreign corporation, and, if the latter, the state, country, or government by or under whose laws it was created. The courts, it is held, will take notice of the existence of a municipal corporation, 68 Ala. 145, Bliss Code Pl. 259 (but not whether it is of a certain class. 35 0. S. 319), and of a private corporation created by public act, Bliss Code Pl. 2 259.

Damages. Plaintiff can only recover the amount of damages claimed in his petition, 3 Wend. 356; 17 John 111, and, if greater damages are given than claimed, he must remit the excess before he can have judgment, 11 Hun 295. General damages, such as necessarily result from the injury, need not be specially pleaded, 67 N. Y. 267; 82 N. Y. 308; but where damages are the natural consequences of the act, though not necessarily the result of it, they must be specially alleged in the petition, Boone Code Pl. 18; 12 N. Y. 277; Bliss Code Pl. 297b; and where they are the foundation of the plaintiff's claim they must be fully stated, 60 How. Pr. 316, as in actions for slander for words not actionable per se, 65 Barb. 62; in actions for assault and bat

tery, 25 Hun 54. In malicious prosecution the amount of costs and counsel fees are elements of special damages, and must be specially pleaded, 7 Daly 74; in actions for injuries to land, loss of rents must be specially pleaded to be recovered, 14 Wend. 159; in actions for damages to baggage by common carrier, loss of employment occasioned by the injury, 2 D. 237, 247; in an action for possession of land, mense profits must be specially pleaded, 12 Barb. 481, and for detention of premises after the expiration of the term, 83 Ind. 387. In trespass de bonis asportatis the plaintiff's expenses in recovering possession should be specially averred, 22 Minn. 278; in an action for fraud in selling sheep with a contagious disease, special damages resulting to plaintiff's sheep, and to his pasture into which the contagious sheep were turned, should be averred, 21 O. S. 655; in an action for damages against a railroad for injury, the petition not alleging that expenses for physicians' services were incurred, evidence of the value of such services is not admissible. 1 C. C. R. 37.

Demand, when necessary before bringing suit, must be alleged, 5 O. S. 87, as in an action on a note to charge an indorser, 1 H. 29; 14 Abb. Pr. 215, for detention of personal property. 57 N. Y. 28; 55 N. Y. 671; in an action on an executor's bond by a creditor or distributee under 2 6210, 6211 R. S. 2 O S. 574; 5 O. S. 87, when required by the terms of the contract, 27 O. S. 484, and to be made in a particular form, 24 Wend. 256; to fix the liability of sureties, 9 O. 106; 5 O. 444; 16 O. S. 552; of a guarantor, 6 How. Pr. 214; in an action against an attorney for money collected by him, 4 Ala. 493; 18 Ind. 342; 5 Kas. 59; but in an action on a note payable on demand, 24 N. Y, 307; 17 0.9; 9 O. S. 517; upon a contract to pay money absolutely; 16 N. Y. 451; and against the maker of a note to pay money at a particular place, 48 N. Y. 520, demand is not necessary and need not be pleaded.

Evidence. It is a rule of pleading that evidence must not be stated, 1 W. L. M. 90; Bliss Code PI.

206.

Fraud must be specially averred, 44 Barb. 166; 55 Barb. 202. A general charge of fraud is not sufficient, 6 Neb. 192; 1 O. S. 478, 505; 18 Kas. 169; nor is a minute statement of the facts and circumstances constituting the general charge required, 73 N. Y. 571. When the facts constituting the fraud are not clearly known to plaintiff, it is held that they may be stated in the alternative, 2 W. C. Rep. 205.

Knowledge, when constituting the gist of the action, must be specially pleaded, 13 Johns. 339; as in cases of injuries committed by domestic animals, 30 Barb. 147, the owner is not liable unless it is alleged that he had notice or knowledge of their vicious propensities, Id.; and where an animal commits an injury while trespassing upon the land of another, 1 N. Y. 515. So in an action of deceit in the sale of goods, scienter is necessary to sustain the action, 53 Barb. 425; and in an action for injuries by a servant in the use of defective machinery, knowledge of or notice to the master of its defective condition should be averred, 56 Barb. 151.

Notice. Where the facts lie more properly within the knowledge of one of the parties than the other, notice is requisite, 4 O. 105, and, when necessary, must be specially pleaded, 23 N. H. 471; and if plaintiff relies on facts which excuse notice, he must state them, 4 Sand. 665.

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