is conceded. But on behalf of the plaintiff it is urged that such fact is alleged in his petition, and is met by no sufficient denial in the answers. The allegation referred to is made in paragraph 6 of plaintiff's petition. The answers of the appellants, among other things, each contain the following: "Relating to the allegations contained in paragraphs one to ten, inclusive, he (the defendant) has no personal knowledge, and denied each and every allegation therein." Plaintiff contends that a defendant has no right to interpose an unqualified denial, except on positive knowledge, and, lacking positive knowledge, he must deny on information and belief or allege a lack of knowledge or information sufficient to form a belief. That such rule prevails in many of the code states is true; but it is based on a statutory requirement to that effect, which is not to be found in our code of civil procedure. As regards denials, the only requirement of our code is that contained in section 99, which is as follows: "The answer shall contain: First, a general or specific denial of each material allegation of the petition controverted by the defendant. Second, a statement of any new matter constituting a defense, counterclaim or set-off, in ordinary and concise language and without repetition." It will be seen that no specific provision is made for a denial, where the defendant lacks positive knowledge, or upon information and belief. However wise such provision might be, this court has no authority to supply it. Are we to infer, then, from this, that the authors of the code intended to enforce the defendant to the alternative of admitting allegations of the truth of which he had no knowledge, or to verify an unqualified denial of such matters? We think not. It seems to us to be more consistent with the spirit of the code to permit the defendant to spare his conscience by a disclaimer of knowledge, and at the same time enter a denial for the purpose of putting the plaintiff to the proof of his allegations. The denials were sufficient in this case, and the failure of the plaintiff to establish the allegation mentioned is fatal to his decree. The other questions discussed in this connection are not likely to arise on another trial.

*

AMES and DUFFIE, C. C., concur.

BY THE COURT: For the reasons stated in the foregoing

opinion,

that portion of the decree in favor of the plaintiff is reversed, and the cause remanded for further proceedings according to law.

(c) Issues Raised by Denials.

BAXTER v. ST. LOUIS TRANSIT COMPANY.

Supreme Court of Missouri. 1906.

198 Missouri, 1.

VALLIANT, J. Plaintiff, a minor, received personal injuries in a collision with a street car which was being operated by defendant, and sues to recover damages for the injuries, alleging that the collision was the result of the negligent operating of defendant's street car. He recovered a judgment for $4,750, and defendant appealed.

1. Before entering into a consideration of the merits of the case there is a question at the threshold that demands our attention.

The petition alleges that the plaintiff is a minor, and that the St. Louis Trust Company, by whom as his curator he sues, is his legally appointed and duly qualified curator, that the defendant is a corporation operating a street railroad, then it proceeds to state the cause of action. The answer of the defendant was a general denial, and a plea of contributory negligence. At the trial there was no proof of the appointment of the alleged curator. It is contended by defendant that the failure of proof on that point is fatal to the plaintiff's right of recovery.

At common law the character in which the plaintiff sued was not put in issue unless specially denied. 1 Chitty on Pl. (16th Am, Ed.) p. 464. In such case a special denial was in the nature of a plea in abatement. Stephens on Pl. (1894) p. 467. Such a plea, if sustained, did not bar the cause of action, but abated that suit. The character in which the plaintiff assumes to sue is entirely distinct for the cause of action alleged; for example, a plaintiff assuming to be the administrator sues to recover a debt due the estate, he may not be the administrator and therefore not

entitled to maintain the suit, yet a judgment that the plaintiff in that suit is not the administrator would be no bar to an action to recover the same debt when the true administrator should sue. And that is as true under our code of procedure as it was at common law. In so far as the science of pleading rests on sound reason for its rules, there is no difference between our system and the system of commonlaw pleading, the conclusions of reason and common sense are the same, but in each system there are arbitrary rules and the difference between the two systems appears in those rules. For example, it is neither illogical nor unreasonable, nor violation of any scientific principle to allow a defendant to plead in abatement of the suit and in bar of the action at the same time; there is nothing inconsistent or contradictory in those pleas with each other, both may be true or one may be true and the other not, and there is no difficulty in shaping the judgment to suit the facts as they may be found on the trial. Yet the common-law rule is that the two pleas cannot stand together, but under the code system the defendant not only may but is required to plead them both in one answer if he intends to avail himself of both. The rule on this point is thus stated in Bliss on Code Pleading (3d Ed.) § 345. "In common-law pleading we have the rule that 'pleas must be pleaded in due order,' that is, the dilatory pleas must be first made and disposed of, to be followed by pleas in bar. The code requires the defendant either to demur or answer, and in his answer he is allowed to set up as many defenses as he may have. Only one answer is contemplated and all the defenses which he elects to make must be embraced within it."

Matters in abatement and matters in bar are as essentially different under the one system as under the other, and the effect of matters in abatement is the same under both systems; that is, if the plea is sustained it abates that suit without affecting the cause of action, the only difference is that at common law it is called a "plea in abatement" and must be disposed of before defendant pleads to the merits of the action, while under the code it goes under the general name of "defense" and may be pleaded in the same answer with a plea to the merits. The author just quoted, discussing the effect of an insufficient statement in the petition of the character in which the plaintiff sues, and holding that such defect is not reached by a general de

murrer, says: "It is but reasonable, then, that the statute should require the defendant, if he objects to the plaintiff's demand, because he does not show a right to appear in court, to base his objection specifically upon that ground; and I know of no comprehensive phrase that so well describes the ground of objection as a want of legal capacity to sue." Bliss on Code Pl. (3d Ed.) p. 620, § 408. In other words, if the capacity in which the plaintiff assumes to sue is defectively stated, the defect cannot be reached by a general demurrer, which goes to the cause of action, but it requires a special demurrer.

Pomeroy, a strong friend of the code system, after first pointing out the distinction between a plea in abatement and a plea in bar in respect of the order in which they were required to be pleaded, says: "There are in the new procedure no such divisions and classes. Defenses still exist of the same essential nature as to those which were formerly set up by means of a plea in abatement, and a judgment thereon in favor of the defendant does not forever bar the plaintiff from the further prosecution of his demand." Pomeroy, Code Rem. (4th Ed.) pp. 799, 800. The learned law-writer, although he regards the codes as in itself a complete system depending for nothing to the common law (Id. p. 541, § 409), yet, in the words just quoted he recognizes fully as it is recognized at common law the essential difference between matters that may be pleaded to abate the suit, and matters pleaded to defeat the cause of action, the only difference between the code and the common law in respect to them being the manner and the order in which they are pleaded, and the issues tried. And on pages 813, 814, he says: "The nonjoinder of necessary parties cannot be proven under the general denial. The defense that the plaintiff is not the real party in interest is new matter, and in an action by an executor or administrator the general denial does not put in issue the plaintiff's title to sue."

As we have already above shown when a plaintiff sued at common law in a representative capacity, as executor or such like, and defendant, without any denial of the plaintiff's alleged character, filed his plea to the merits of the action and went to trial, he was presumed to have admitted the character assumed by the plaintiff.

There was no injustice to the defendant in that rule of

pleading, for, if he really intended to question the matter, he could, by a special plea, require the plaintiff to produce the proof. It is the boast of the advocates of the code system that it is designed to reach more quickly the merits of a controversy by cutting away from the unnecessary forms and technicalities of the common law, but if our system puts the plaintiff to such proof when it is not specially called for by the defendant's answer, we are more formal and technical than were our common-law predecessors.

The first case in which the precise question we now have come before this court for decision was Rogers v. Marsh, 73 Mo. 64, in which this court, per NAPTON, J. (who also wrote the opinion in the Porter Case above mentioned), said: "It is also claimed that the answer denied each material allegation of the petition, and as no evidence was offered to show the appointment of the next friend for the two of the plaintiffs who are minors, the judgment should be reversed. This is virtually an objection that the proper parties are not made plaintiffs, and such objection if not made either by demurrer or answer, is waived under the statute, and cannot be made in the motion in arrest. The answer should have set this matter up, and it not having been done, the objection now made cannot be considered. Judgment affirmed, in which all concur.”

Our conclusion is that under sections 598, 599, and 602, Rev. St. 1899, when a plaintiff assumes to sue in a representative capacity, that capacity can be put in issue in two ways only, first, if in the body of the petition facts sufficient to constitute the capacity are not stated the issue may be raised by a special demurrer; second, if the facts to constitute the capacity are sufficiently stated, they may be put in issue by a specific denial, but the issue is not raised in either case by a general demurrer or a general denial.

It being averred in the petition in this case that the St. Louis Trust Company was the lawfully appointed and duly qualified curator of the plaintiff, and there being no specific denial of that fact, it must be taken as admitted. The court did not err, therefore, in refusing the instructions asked by defendant in the nature of a demurrer to the evidence because of failure of proof on that point.