that L. M. and N. O. are necessary parties defendant in this action, without whose presence therein a complete determination of the controversy cannot be had; and that they have such an interest in the subject-matter of the controversy that the court should require them to be made parties for their due protection: Ordered, that on payment by the defendant to the clerk of this court of the amount claimed in the summons herein, principal and interest, less ten dollars costs of this motion, within five days. from the entry of this order, O. P. be substituted as defendant in this action, in place of Y. Z., the defendant above named, and that said Y. Z. thereupon be discharged from liability to either the plaintiff above named or said O. P. And further ordered, that the said O. P. have leave to appear and defend this action within twenty days after service upon him of a copy of this order, together with a copy of the complaint herein, and that in case he fail so to do the plaintiff may apply to the court for judgment as by default, and for such other relief as he may be entitled to. § 722. Delivery of specific property, and appointing receiver therefor. [TITLE.] Form No. 236. [Commencement and recitals as in last preceding form.] Ordered: 1. That the defendant deliver the property mentioned in the complaint herein to R. S., Esq., of . . ., who is hereby appointed receiver thereof. 2. That O. P., of . . ., be substituted as defendant in this action, in place of the above-named Y. Z., who shall, upon delivery of the said property to the said receiver, be discharged from all liability therefor, either to the plaintiff or to the said O. P. 3. That the said receiver hold the said property subject to the further direction of this court. [If any special authority is needed, as for collection of incomes, or the sale of the property, insert it here.] ... 4. That within . . . days after entry [or, notice] of this order, the plaintiff serve a summons and a copy of his complaint, amended as he may see fit, [with a copy of this order,] upon the said O. P., and that the said O. P. answer such complaint within days thereafter. 5. That if the plaintiff neglect to serve his summons and complaint and this order as herein directed, the defendant, Y. Z., may apply to the court for an order dismissing the action, and that the said property be delivered by the receiver unto said defendant; and further ordered that if defendant neglect to answer such complaint as herein required, if served as herein directed, the plaintiff may apply, on notice, for an order that said property be delivered by the receiver to the plaintiff. 6. That . . dollars costs be allowed to the said Y. Z., to be deducted by him out of the fund [or, to be paid by the plaintiff, and allowed to him in case of his final recovery of judgment]. Dated . . ., 19.. By the Court: J. K., Judge. CHAPTER XXX. REPLICATION. § 723. In general.-Under the California Code of Civil Procedure, no reply to new matter in the answer, or to a counterclaim, is required; but such matter must, on the trial, be deemed controverted by the opposite party. But in New York, Ohio, Wisconsin, Colorado, Washington, and other states, new matter, pleaded either as a defense or as a counterclaim, requires a reply. Such is certainly the more rational mode of pleading. In view of the practice in those states where a replication is required or permitted, we have set forth in this work certain forms therefor. The answer to a cross-complaint does not differ from an answer to an original complaint, either in form or substance, and the pleader is referred to that portion of the work treating of answers in general. A paper filed in an action by the plaintiff, and styled an "answer to the defendant's cross-complaint," will not be considered as a pleading when no crosscomplaint is filed." § 724. Necessity for replication.-An answer in an action on a note denying that there was any consideration, but alleging that it was given as security only, and denying that there was anything due thereon, is no more than a denial of the facts pleaded in the complaint, and so requires no reply. So, also, as to an answer to a complaint for the recovery of real property, where the answer alleged that the only title the plaintiff had resulted from a void tax-deed.* § 725. Chancery practice.-In general, if the complainant in a bill in chancery does not file a general replication to the answer of the defendants, the answer is to be taken as true, and no evidence can be given by the complainant to contradict it. After a 1 Cal. Code Civ. Proc., § 462; Ariz. Rev. Stats., 1901, par. 1357; In re Garcelon, 104 Cal. 581, 43 Am. St. Rep. 134, 38 Pac. 414, 32 L. R. A. 595; Grangers' Assoc. v. Clark, 84 Cal. 201, 23 Pac. 1081. 2 Carroll v. Girard Fire Ins. Co., 72 Cal. 297, 13 Pac. 863. See Warner v. 8 Adams v. Casey, 39 Wash. 37, 80 Pac. 853. 4 Cuenin v. Halbouer, 32 Colo. 51, 74 Pac. 885. Gallagher v. Roberts, 1 Wash. C. cause is set for hearing, on bill and answer, and reference to the auditor directed, the plaintiff is allowed to file a general replication. A replication to a plea in chancery is an admission of its sufficiency as a defense." 6 § 726. Conclusion.-A replication containing new matter should conclude with a verification, and not to the country." But if it states no new matter, it may conclude to the country." A replication at once denying the particular fact intended to be put in issue, and concluding to the country, without any preamble, and without a formal traverse, frequently occurs in practice; and on account of conciseness should, when practicable, be adopted. If the plea answers the matter which is the gist of the action, it is sufficient. In an action of debt against devisees, a replication of assets by descent may conclude with a verification.12 11 § 727. Counterclaim of defendant.-A counterclaim is in the nature of a complaint in a cross-action. If it is a demand for damages for converting property, it is not necessary for the plaintiff to put in a reply denying the amount of value, or the allegation of damage. These must be proved on an assessment, although the plaintiff puts in no reply.13 And defendant is entitled to only nominal damages, unless he proves substantial damage.1 A reply merely denying that the defendant is entitled to any sum admits the facts set up, as in counterclaim.15 The plaintiff's complaint contained eight counts in the common form; the defendant's answer denied generally all the allegations of the complaint, and set up a counterclaim; the plaintiff's reply contained, among other things, a counterclaim to the defendant's counterclaim, and the defendants moved to strike out this portion. of the reply; it was held that defendants had mistaken their C. 320, Fed. Cas. No. 5194; Peirce v. West, Pet. C. C. 351, Fed. Cas. No. 10909. 6 Peirce v. West, Pet. C. C. 351, Fed. Cas. No. 10909. 7 Hughes v. Blake, 6 Wheat. 453, !.. Ed. 303, affirming 1 Mason, 515, Fed. Cas. No. 6845. 8 Hallett v. Slidell, 11 Johns. 56; Hanna v. Rust, 21 Wend. 149. 9 Bindon v. Robinson, 1 Johns. 516; Patcher v. Sprague, 2 Johns. 462 10 1 Chit. Pl. 592, 2 T. R. 442. 11 Andrus v. Waring, 20 Johns. 153. See, also, Snyder v. Croy, 2 Johns. 428. 12 Labagh v. Cantine, 13 Johns. 272. 13 Connoss v. Meir, 2 E. D. Smith, 314. 14 McKensie v. Farrell, 4 Bosw. 192; Merritt v. Millard, 5 Bosw. 645. 15 McKensie v. Farrell, 4 Bosw. 192. remedy; they should have demurred. Whether such reply is good, quare.10 § 728. Form.-A replication which is merely a denial is not special.1 Where the defendant pleads a record of the same court, the replication of nul tiel record concludes with a verification, and a day is given to the parties to have judgment; if the plea be of a record of another court, the replication may either conclude by giving the defendant a day to bring in the record, or with an averment, and prayer of debt and damages; in which latter case there must be a rejoinder reasserting the existence of the record.18 19 § 729. When not permitted.-A reply cannot be permitted where no counterclaim is interposed by the answer. New matter which does not constitute a counterclaim is to be deemed controverted. The pleading of defendant as to a party made defendant, on the defendant's motion, is, as to plaintiff, an answer in defense, and regarded as denied, without a reply from plaintiff.20 Under the statute of California, the affirmative allegations of the answer stand controverted by the plaintiff; the burden being on the defendant to prove their truth, rendering a reply unnecessary.21 And a counterclaim, or matter in avoidance, set up in an answer, need not be denied by plaintiff to put defendant upon his proof.22 In Pennsylvania, where the replication puts in issue the averments of the answer, it throws upon the defendants the burden of sustaining them.23 § 730. Sufficient reply. If an answer alleges mere matters of evidence, a replication traversing the ultimate and issuable fact which the answer was intended to aver is sufficient.24 Defendant may have judgment on the pleadings, if his answer sets up a good defense in new matter and the plaintiff's reply is not verified when it should be.25 And where a statute requires 16 Stewart v. Travis, 10 How. Pr. 148. 17 Manhattan Co. V. Miller, 2 Caine, 60; Boucher v. Powers, 29 Mont. 342, 74 Pac. 942. 18 Bobyshall v. Oppenheimer, 4 Wash. C. C. 388, Fed. Cas. No. 1591. 19 Devlin v. Bevins, 22 How. Pr. 290. See Bissell v. Pearse, 21 How. Pr. 130. 20 Copper Belle Min. Co. v. Costello (Ariz.), 95 Pac. 803. 21 Bryan v. Maume, 28 Cal. 238; Grangers' Assoc. v. Clark, 84 Cal. 201, 23 Pac. 1081. 22 Herold v. Smith, 34 Cal. 122. 23 Naglee's Estate, 52 Pa. St. 154. 24 Moore v. Murdock, 26 Cal. 514. 25 Hill Brick & Tile Co. v. Gibson, 43 Colo. 104, 95 Pac. 293. |