in writing, and filed." Without express direction, such is infinitely the better practice. The motion is thus preserved in the exact form which counsel desire to give it. It is then exempt from the dangers incident to journal entries and minutes, or even the transcription by stenographers and court clerks. plication to the court. grant the order;" and, is a motion.

But the motion itself is the ap"The court must be moved to when so moved, the proceeding The moving party may not file his motion in writing, and wait for months before moving the court. Such practice would open the gate to abuses incalculable.1

BLAKE, C. J., and HARWOOD, J., concur.

may be stricken out on motion of any person aggrieved thereby; and when the allegations of a pleading are so indefinite or uneertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment, or may dismiss the same."'

Wisconsin. St., 1898.

§ 2681. If a demurrer, answer or reply be frivolous the court or the presiding judge thereof may, upon motion strike such pleading out and thereupon either order judgment in favor of the adverse party or, in his discretion, allow the party interposing the same to plead over, within a limited time on such terms as may be just.

"§ 2683. If any pleading contain irrelevant, redundant or scandalous matter it may be stricken out, with costs, on motion of the adverse party, and the court or presiding judge, in discretion, may order the attorney who signed the same to pay the costs. When the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent the court or presiding judge may require the pleading to be made definite and certain by amendment."'

Wyoming. Comp. St., 1910.

§§ 4407, 4408. Same as §§ 11335, 11336 of the Ohio statutes, supra. Several codes, which require pleadings to be verified, have the further provision that unverified pleadings may be stricken out on motion.

1 Motion must stand or fall as made. In Hudelson v. First Nat. Bank (1898), 56 Neb. 247, the court said: "The court may, of course, in a proper case, grant a motion in part and deny it in part, but it is well settled by our decisions that to refuse to do so is not error. To the same effect see Valley Lumber Co. v. McGilvery (1908), 16 Idaho 338, 363.

SECTION 2. MOTION TO STRIKE.

TITTLE v. KENNEDY.

Supreme Court of South Carolina. 1904.

71 South Carolina, 1.

March 6, 1905. The opinion of the court was delivered by

Mr. Justice WOODS: The plaintiff in this action of claim and delivery recovered the following verdict: "We find for the plaintiff the oats described in the complaint, or their value, which we fix at one hundred and nineteen dollars and forty cents, and also actual and punitive damages fifty dollars. [Signed] Francis Henry, Foreman."

The circuit judge was in error in charging that punitive damages are recoverable in an action of claim and delivery.

The complaint contained allegations appropriate to an action for punitive damages, and the defendants, in pursuance of notice, moved to require the plaintiff "to allege and state separately the several causes of action united in said complaint, to wit, a cause of action in claim and delivery of personal property and damages for the alleged unlawful taking and detention of the same, and (2) a cause of action for punitive damages," and then to require the plaintiff to elect upon which cause of action she would proceed. Failing in this motion, they moved to strike out from the complaint the words "with force and arms, unlawfully, violently, and in a high-handed manner," these words being the basis of the claim for punitive damages. This motion was also refused. It is not necessary to consider the motion made to require what the defendant insists were two causes of action to be stated separately, because it follows from the conclusion that punitive damages are not recoverable in an action of this character that the allegations relating thereto should have been stricken out. The case is clearly distinguished on this question of practice from Berry v. Moore, 69 S. C. 317, 48 S. E. 249. There the claim for punitive damages was stated as a separate

and distinct cause of action, and demurrer to that cause of action was held to be the proper remedy; here the allegations as to punitive damages are stated not as a separate cause of action, but along with the ordinary allegations in claim and delivery. "A demurrer is not generally a proper remedy for disposing of irrelevant or redundant matter contained in a pleading, but an application to strike out is the only proper remedy, since a demurrer does not lie to a part only of the allegations intended to set forth a single cause of action or defense; nor is irrelevancy, redundancy, or surplusage a ground of demurrer to the pleading as a whole. On the other hand, where an entire pleading, or part of a pleading, purporting to set up a separate cause of action or defense, is wholly devoid of merit, and consists only of irrelevant or superfluous matter, a general demurrer will lie, or the objection may be taken in some other manner proper for determining its sufficiency; but according to many authorities it may not be stricken out under a code provision, the language of which limits motions to strike out to irrelevant or redundant matter contained or inserted in a pleading which is otherwise good." 21 Ency. P. & P. 234-236. The motion to strike out should have been granted.

EWING v. VERNON COUNTY.

Supreme Court of Missouri. 1908.

LAMM, P. J.

216 Missouri, 681.

3. Defendant assigns for error the overruling of its motion to strike out the petition. Learned counsel

*

for defendant, not only seeking to widen the statutory rules differentiating motions from demurrers, also hew out a novel path of doubtful use verging from the main-traveled road of general practice. The ground of the motion is that "said petition does not state facts sufficient to constitute a cause of action." Thus they seize the general statutory

ground of demurrer and harness it up for service in a motion to strike out. Now, motions and demurrers seek different remedies. A motion seeks some order of court falling short of the dignity of a judgment; a demurrer raises an issue at law, and seeks a trial and judgment on that issue. Bliss on Code Pleading (3d Ed.) §§ 418, 240, et seq. A motion to strike out might be leveled at a frivolous pleading, or a second petition that was a departure from the first, or a sham pleading. So, it might be leveled at trifling, trivial, nugatory, redundant, or irrelevant matter, or matter of duplicity or unnecessary repetition, or the like; but it ought not to fill the well-defined and technical office of a demurrer in bringing to the attention of the court demurrable defects in a petition. Rev. St. 1899, §§ 598, 608, 611613 (Ann. St. 1906, pp. 624, 643-645); Bliss on Code Pleading, supra.

The point is ruled against the defendant.1

1 In Southern Home Ins. Co. v. Putnal (1909), 57 Fla. 199, it was said to be apparent that while there is a difference in the functions performed by a motion to strike out a pleading and a demurrer thereto, and that they cannot be used interchangeably or indiscriminately, the line of demarcation between the two has not always been kept clear but at times has been wavy and shadowy. . . . It may be that it is not always an easy matter to differentiate the two methods. Some pleadings may be infected with such vices as to be open to attack either by a motion to strike out or by demurrer." If the courts can lay down no clear rules in the matter it would seem useless to expect the bar to do better, and a liberal policy in treating motions as demurrers, and vice versa, in proper cases, ought to prevail.

BLEMEL v. SHATTUCK.

Supreme Court of Indiana. 1892.

133 Indiana, 498.

MCCABE, J.: This was a proceeding by way of petition in Circuit Court under provisions of the drainage act approved April 6, 1885. Elliott, Supp. § 1184. The petition was referred to the drainage commissioners. They afterwards reported.

After an unsuccessful motion by appellants to set aside. this report, the same was approved by the court below, and

C. P.-42

the petition was dismissed, pursuant to section 3 of that act. Elliott, Supp. § 1886.

The first error assigned is "sustaining the motion of defendants to strike out the complaint of plaintiffs to set aside the report of commissioners." The paper here referred to as a complaint was a motion to set aside the report of the commissioners, though it is designated elsewhere in the record as both a motion and a complaint. It has been often held by this court that the character of a pleading is not determined by the name or designation applied to it by the pleader, but is to be determined by the contents of the same. Searle v. Whipperman, 79 Ind. 424; Johnson v. Hosford, 110 Ind. 572, 10 N. E. Rep. 407.

The pleading in question purports, in the body thereof, to be a motion to set aside the report of the drainage commissioners, and to refer the petition to new commissioners, for the reasons therein stated. It was therefore nothing but a motion. Indeed, the drainage act under which the proceeding was instituted does not contemplate the filing of a complaint to set aside a report of the commissioners. Then the motion of the appellees to strike out appellants' motion to set aside the commissioners' report was a superfluous motion, as was said by this court in White v. D. S. Morgan & Co., 119 Ind. 340, 21 N. E. Rep. 968,-that "a motion to strike out another motion, to strike out and to reject a demurrer, are usually frivolous, and ought not to be entertained, or entered of record, by the trial court."

And so we hold that such motion ought not to have been entertained. Indeed, the court ought not to have allowed the same to be filed, and, after it was filed, ought, of its own motion, to have stricken it out as a needless incumbrance of the record, because the same relief demanded. and same question raised by it would be afforded and raised by a proper ruling on the other motion.

But the trial court did entertain such a motion, and actually sustained it, and the question we have to determine under this assignment of error is, was it error to sustain such motion? The answer to that question depends to some extent upon what effect the sustaining of such second motion had upon the first motion. It cannot be justly said that it had no effect. The court below has treated it as if it had some effect upon the first motion, namely, to strike