signed will move the court, at the courtroom thereof, at ., on the . . . day of . . ., 19.., at the hour of . . ., in the forenoon, or as soon thereafter as counsel can be heard, for an order directing the above-entitled action to be continued by P. Q., as executor of the last will and testament of [or administrator of the estate of] C. D., plaintiff above named, deceased, in place of said deceased plaintiff. [DATE.] § 78. Order of substitution. [TITLE.] Form No. 10. [SIGNATURE.] On reading and filing the affidavit of J. R., dated the day of . . ., 19.., and the pleadings in this action, and proof of due service of notice of this motion, and on motion of S. T., counsel for defendant, and after hearing G. H., of counsel for said P. Q., executor of A. B., the deceased plaintiff: It is ordered, etc. [DATE.] § 79. Novation, by substitution of new creditor. [TITLE.] Form No. 11. [SIGNATURE.] at the request of That on the . . . day of . . ., 19.., at the plaintiff, he made his promissory note [or his bond, under seal] to one M. N. for . . . dollars, in discharge of the indebtedness stated in the complaint. § 80. The same, in case of a promise to apply indebtedness upon a mortgage by the plaintiff. I. That before the delivery by the plaintiff to the defendants of the goods in the complaint mentioned, the said goods, or part thereof, were mortgaged by the plaintff to one M. N., who, by virtue of said mortgage, had a lien and control over the said goods, and the said plaintiff was unable to deliver them to the defendants; and in order that he might deliver said goods to the defendants, freed and discharged from said mortgage, and all claim and lien of the said M. N., it was then and there agreed by and between the defendants and the plaintiff and the said M. N., that in consideration that he, the said M. N., should and did, at the request of said plaintiff, release the said goods of and from all his lien and claim thereof, to the end that the same might be delivered by the plaintiff to the defendants, free of said mortgage and lien; that the defendants should, before payment for said goods, deduct and retain out of any moneys that should be or become due from them, enough to be applied to satisfy and discharge, so far as the same would extend, any sum which at the time of such payment should be due from plaintiff to M. N. on said mortgage. II. That the said M. N., relying on such agreement, and in consideration thereof, did, after the making of said agreement, and before the delivery of said goods to the defendants, and at the request of said plaintiff, release and discharge the said goods from the said mortgage and his claim or lien thereon. III. That afterwards, upon an accounting between the parties, there was found due from the plaintiff to the said M. N., a sum exceeding the amount due from the defendants; namely, the sum of . . . dollars, and interest thereon from the . . . day of .. 19., and of which the defendants then and there had notice. ... ... IV. That the defendants thereupon paid to the said M. N. [or, at the request of said M. N., held and retained to and for his use and benefit] the said sum due from the defendants in payment and satisfaction, so far as the same would extend, of the said then existing indebtedness of the plaintiff to the said M. N., and which the said M. N. was then and there ready and willing should be applied, and it was applied, in satisfaction and discharge, so far as the same would extend, of the said then indebtedness of the said plaintiff to said M. N., in pursuance of the said agreement. 81. Order for revivor and continuance. ... On reading and filing the petition of C. D., dated the . . . day of . . ., 19.., and the pleadings in this action [and the proposed supplemental complaint herein, and proof of due service of notice. of this motion], and on motion of Q. R., counsel for said C. D., assignee [or receiver, or executor, or administrator, or heir] of the plaintiff, deceased, and after hearing O. P., of counsel for the defendant [or no one appearing], in opposition: Ordered, that the above-entitled action be continued in the names of C. D. and E. F., as executors of A. B., plaintiff above named, [or that the complaint herein be dismissed so far as the interests of C. D. and E. F., executors of A. B., plaintiff above named, are concerned; and that the defendant have leave to enter judgment against said C. D. and E. F., as executors, for the costs of the action, with . . . dollars, costs of this motion]. § 82. Affidavit for supplying the place of a lost pleading. Form No. 14. [TITLE.] I. On the ... day of above-named court, in this true copy. ., 19.., a complaint was filed in the action, of which the following is a II. That the said original complaint has been lost or mislaid, and that after search made by the clerk of the said court, the same cannot be found. III. That this affiant does not know where the said original complaint now is. CHAPTER VIII. GENERAL RULES OF PLEADINGS. § 83. Pleadings defined. The definition of pleadings in the several codes is substantially as follows: The pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the court. The codes are practically uniform in their statements as to the pleadings allowed on the part of the plaintiff and defendant, the only difference being that in some states a reply to the answer is required in some cases. Under the codes the only pleadings allowed on the part of the plaintiff are: 1. The complaint; 2. The demurrer to the answer. Those allowed on the part of the defendant are: 1. The demurrer to the complaint; 2. The answer. This code definition is merely a statutory declaration of the common-law definition admirably given by Chitty as "the statement in a logical and legal form of the facts which constitute the plaintiff's cause of action or the defendant's ground of defense: it is the formal mode of alleging that, upon the record, which would be the support of the action or the defense of the party in evidence.”1 Blackstone (bk. III, chap. 20) defines pleadings as the "mutual altercations between the plaintiff and defendant." In other words, whenever there is submitted to a court for adjudication a proposition of fact or of law which is affirmed by one party and denied by the other, no matter how the issue is made, whether orally or in writing, whether formally or informally, the affirmation by one party and the denial by the other constitute pleadings; such affirmation being in substance and effect a declaration or complaint and such denial a plea or answer.2 1 Chit. Pl. 235. P. P. F. Vol. I-5 2 Tarbox v. Adams County Supervisors, 34 Wis. 558. § 84. Object of pleadings.-As may be inferred from what has just been said the object of pleadings is the production of a material issue between the parties, that is, a material matter of law or fact affirmed upon the one side and denied upon the other, and which is the matter disputed between the parties and to be tried and determined by the court or jury. In other words, the pleadings are but the forms intended as the basis of the proof to be submitted at the trial of the issue. The foregoing is substantially a definition of the term "issue,' both under the codes and at common law. "Issues arise upon the pleadings where a fact or conclusion of law is maintained by the one party, and is controverted by the other. They are of two kinds of law, and of fact. An issue of law arises upon a demurrer to the complaint or answer, or to some part thereof. An issue of fact arises, 1. Upon a material allegation in the complaint controverted by the answer; 2. Upon new matters in the answer, except an issue of fact is joined thereon." The statement of new matter in the answer, in avoidance, or constituting a defense or counterclaim, must on the trial be deemed controverted by the other party. Such a pleading as an "additional answer" is unknown to the code system of pleading; but where the plaintiff, without questioning it by motion or otherwise in the first instance, joins issue thereon, it makes one of the issues in the case. The codes of some few of the states require a replication by the plaintiff to new matter set up in the answer; but the rule above stated prevails generally. § 85. Construction of pleadings.-The California codes provides that "the forms of pleading in civil actions, and the rules by which the sufficiency of the pleadings is to be determined are those prescribed by this code." But this does not mean that the rules of the common law and the decisions of the courts thereunder are to be disregarded when the sufficiency of a pleading is in question. The codes can do no more, and pretend to do no more, than to state general rules to be followed in construing pleadings. These rules are not exclusive of other rules, and courts should still resort to the common-law rules and the decisions construing them. 3 Estee's Pl. & Pr., § 178. 4 Cal. Code Civ. Proc., § 588. 7 Greig v. Clement, 20 Colo. 167, 37 Pac. 960. 8 Cal. Code Civ. Proc., § 421. |