TITLE 2. TITLE II. Provisions generally applicable to pleadings. SECTION 518. Application and effect of this chapter. 519. Pleadings to be liberally construed. 520. Pleadings to be subscribed; within what time to be served. 522. Allegation not denied; when to be deemed true. 523. When pleading must be verified; and when verification may be 524. Form and construction of certain allegations and denials in verified pleadings. 525. Verification: how and by whom made. 526. Form of affidavit of verification. 527. When verification may be confined to a counterclaim 528. Remedy for defective verification, or want of verification. 529. When defendant not excused from verifying answer to charge of fraud. 531. Account; how pleaded. Bill of particulars. 532. Judgments; how pleaded. 533. Conditions precedent; how pleaded. 534. Instrument for payment of money, how pleaded. 535. Pleadings in libel and slander. 536. Pleading mitigating circumstances, in action for a wrong. 537. Frivolous pleadings; how disposed of. 538. Sham defences to be stricken out. 539. Material variances; how provided for. 540. Immaterial variances; how provided for. 541. What to be deemed a failure of proof. 542. Amendments of course. 543. Amended pleading to be served; answer thereto. 544. Supplemental pleadings. 545. When a pleading may be excepted to; mode and effect or excepting. 547. Determination upon the exception; costs; when the attorney may be ordered to pay costs. tion and § 518. This chapter prescribes the form of pleadings in an action, Applica and the rules by which the sufficiency thereof is determined, except effect of where special provision is otherwise made by law. this chapter. § 519. The allegations of a pleading must be liberally construed, Pleadings with a view to substan ial justice between the parties. to be liberally con to be sub. § 520. A pleading must be subscribed by the attorney for the party, strued. A copy of each pleading, subsequent to the complaint, must be served Pleadings on the attorney for the adverse party, within twenty days after service scribed; of a copy of the preceding pleading. within what time served. § 521. Where the judgment may determine the ultimate rights of to be two or more defendants, as between themselves, a defendant, who When derequires such a determination, must demand it in his answer, and fendant to must, at least ten days before the trial, serve a copy of his answer upon answer on the attorney for each of the defendants, to be affected by the deter- co-defendmination. The controversy between the defendants shall not delay a [7] *Stricken out. 97 serve copy ant. TITLE 2. not denied; judgment, to which the plaintiff is entitled; unless the court otherwise directs. Allegation § 522. Each material allegation of the complaint, not controverted when to be by the answer, and each material allegation of new matter in the answer, not controverted by the reply, where a reply is required, must, for the purposes of the action, be taken as true. But an allegation of new matter in the answer, to which a reply is not required, or of new matter in a reply, is to be deemed controverted by the adverse party, by traverse or avoidance, as the case requires. deemed true. When pleading must be and when § 523. Where a pleading is verified, each subsequent pleading, except a demurrer, or the general answer of an infant by his guardian verified; ad litem, must also be verified. But the verification may be omitted, verification in a case where it is not otherwise specially prescribed by law, where the party pleading would be privileged from testifying, as a witness, concerning an allegation or denial contained in the pleading. A pleading cannot be used, in a criminal prosecution against the party, as proof of a fact admitted or alleged therein. may be omitted. Form and § 524. The allegations or denials in a verified pleading must, in form, construc. be stated to be made by the party pleading. Unless they are therein tain allega-stated to be made upon the information and belief of the party, they tion of cer tions and denials in verified pleading. Verifica tion; how and by whom made. Form of afidavit of verifica tion. must be regarded, for all purposes, including a criminal prosecution, as having been made upon the knowledge of the person verifying the pleading. An allegation that the party has not sufficient knowledge or information, to form a belief, with respect to a matter, must, for the same purposes, be regarded as an allegation that the person verifying the pleading has not such knowledge or information. § 525. The verification must be made by the affidavit of the party, or, if there are two or more parties united in interest, and pleading together, by at least one of them, who is acquainted with the facts, except as follows: 1. Where the party is a domestic corporation, the verification must be made by an officer thereof. 2. Where the people of the State are, or a public officer, in their behalf, is the party, the verification may be made by any person acquainted with the facts. 3. Where the party is a foreign corporation; or where the party is not within the county where the attorney resides, or, if the latter is not a resident of the State, the county where he has his office, and capable of making the affidavit; or, if there are two or more parties united in interest, and pleading together, where neither of them, acquainted with the facts, is within that county, and capable of making the affidavit; or where the action or defence is founded upon a written instrument for the payment of money only, which is in the possession of the agent or the attorney; or where all the material allegations of the pleading are within the personal knowledge of the agent or the attorney; in either case, the verification may be made by the agent of or the attorney for the party. § 526. The affidavit of verification must be to the effect, that the pleading is true to the knowledge of the deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Where it is made by a person, other than the party, he must set forth, in the affidavit, the grounds of his belief, as to all matters not stated upon his knowledge, and the reason why it is not made by the party. TITLE 2. fication may be § 527. Where the complaint is not verified, and the answer sets up a When veri counterclaim, and also a defence by way of denial or avoidance, the affidavit of verification may be made to refer exclusively to the counter- confined to claim. In that case, the last three sections are applicable to the affi- claim. davit and the counterclaim, as if the latter was a separate pleading. a counter for defec want of § 528. The remedy for a defective verification of a pleading is to Remedy treat the same as an unverified pleading. Where the copy of a plead- tive verifiing is served without a copy of a sufficient verification, in a case where cation, or the adverse party is entitled to a verified pleading, he may treat it as verificaa nullity, provided he gives notice, with due diligence, to the attorney tion. of the adverse party, that he elects so to do. fendant verifying § 529. A defendant is not excused from verifying his answer to a When decomplaint, charging him with having confessed or suffered a judg- not exment, or executed a conveyance, assignment, or other instrument, or cused from transferred or delivered money, or personal property, with intent to answer to hinder, delay, or defraud his creditors; or with being a party or privy charge of to such a transaction by another person, with like intent towards the creditors of that person; or with any fraud whatever, affecting a right or the property of another. fraud. how § 530. In pleading a private statute, or a right derived therefrom, it Private is sufficient to designate the statute by its chapter, year of passage and statute; title, or in some other manner with convenient certainty, without set- pleaded. ting forth any of the contents thereof. how Bill of par ticulars. § 531. It is not necessary for a party to set forth, in a pleading, the Account items of an account therein alleged; but in that case, he must deliver to pleaded. the adverse party, within ten days after a written demand thereof, a copy of the account, which, if the pleading is verified, must be verified by his affidavit, to the effect, that he believes it to be true; or, if the facts are within the personal knowledge of the agent or attorney for the party, or the party is not within the county where the attorney resides, or capable of making the affidavit, by the affidavit of the agent or attorney. If he fails so to do, he is precluded from giving evidence of the account. The court, or a judge authorized to make an order in the action, may direct the party to deliver a further account, where the one delivered is defective. The court may, in any case, direct a bill of the particulars of the claim of either party to be delivered to the adverse party. ments; § 532. In pleading a judgment, or other determination, of a court Judg. or officer of special jurisdiction, it is not necessary to state the facts how conferring jurisdiction; but the judgment or determination may be pleaded. stated to have been duly given or made. If that allegation is controverted, the party pleading must, on the trial, establish the facts conferring jurisdiction. precedent; § 533. In pleading the performance of a condition precedent in a Conditions. contract, it is not necessary to state the facts constituting performance; how but the party may state, generally, that he, or the person whom he pleaded. represents, duly performed all the conditions on his part. If that allegation is controverted, he must, on the trial, establish performance. for pay: how § 534. Where a cause of action, defence, or counterclaim, is founded Instrument upon an instrument for the payment of money only, the party may set ment of forth a copy of the instrument, and state that there is due to him money; thereon, from the adverse party, a specified sum, which he claims. pleaded. Such an allegation is equivalent to setting forth the instrument, according to its legal effect. TITLE 2. Pleadings in libel and slander. Pleading mitigating stances in action for a wrong. § 535. It is not necessary, in an action for libel or slander, to state, in the complaint, any extrinsic fact, for the purpose of showing the application to the plaintiff, of the defamatory matter; but the plaintiff may state, generally, that it was published or spoken concerning him; and, if that allegation is controverted, the plaintiff must establish it on the trial. In such an action, the defendant may prove mitigating circumstances, notwithstanding that he has pleaded or attempted to prove a justification. § 536. In an action to recover damages for the breach of a promise circum- to marry, or for a personal injury, or an injury to property, the defendant may prove, at the trial, facts, not amounting to a total defence, tending to mitigate or otherwise reduce the plaintiff's damages, if they are set forth in the answer, either with or without one or more defences to the entire cause of action. A defendant, in default for want of an answer, may, upon a reference or inquiry to ascertain the amount of the plaintiff's damages, prove facts of that description. Frivolous pleadings; how disposed of. § 537. If a demurrer, answer, or reply is frivolous, the party prejudiced thereby, upon a previous notice to the adverse party, of not less than five days, may apply to the court or to a judge of the court for judgment thereupon, and judgment may be given accordingly. If the application is denied, an appeal cannot be taken from the determination, and the denial of the application does not prejudice any of the subsequent proceedings of either party. Costs, as upon a motion, may be awarded upon an application pursuant to this section. § 538. A sham answer or a sham defence may be stricken out by the be stricken Court, upon motion, and upon such terms as the court deems just. § 539. A variance, between an allegation in a pleading and the variances; proof, is not material, unless it has actually misled the adverse party vided for. to his prejudice, in maintaining his action or defence, upon the merits. If a party insists that he has been misled, that fact, and the particulars in which he has been misled, must be proved to the satisfaction of the court. Thereupon the court may, in its discretion, order the pleading to be amended, upon such terms as it deems just. Sham defences to Material how pro Immaterial § 540. Where the variance is not material, as prescribed in the last variances; section, the court may direct the fact to be found according to the evivided for. dence, or may order an immediate amendment, without costs. how pro deemed a What to be § 541. Where, however, the allegation to which the proof is directed, failure of is unproved, not in some particular or particulars only, but in its entire scope and meaning, it is not a case of variance, within the last two sections, but a failure of proof. proof. Amend ments of Course Amended § 542. Within twenty days after a pleading, or the answer or demurrer thereto, is served, or at any time before the period for answering it expires, the pleading may be once amended by the party, of course, without costs, and without prejudice to the proceedings already had. But if it is made to appear to the court, that the pleading was amended for the purpose of delay, and that the adverse party will thereby lose the benefit of a term, for which the cause is or may be noticed, the amended pleading may be stricken out, or the pleading may be restored to its original form, and such terms imposed as the court deems just. § 543. Where a pleading is amended, as prescribed in the last secpleading to tion, a copy thereof must be served upon the attorney for the adverse be served; party. A failure to demur to, or answer the amended pleading, within thereto twenty days thereafter, has the same effect as a like failure to demur to, or answer the original pleading. answer TITLE 2. mental § 544. Upon the application of either party, the court may, and, in Supple a proper case, must, upon such terms as are just, permit him to make pleadings. a supplemental complaint, answer or reply, alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made; including the judgment or decree of a competent court, rendered after the commencement of the action, determining the matters in controversy, or a part thereof. The party may apply for leave to make a supplemental pleading, either in addition to, or in place of, the former pleading. In the former event, if the application is granted, a provisional remedy, or other proceeding already taken in the action is not affected by the supplemental pleading; but the right of the adverse party to have it vacated or set aside, depends upon the case presented by the original and supplemental pleadings. strike out § 545. Irrelevant, redundant, or scandalous matter contained in a Motion to pleading, may be stricken out upon the motion of a person aggrieved irrelevant, thereby. Where scandalous matter is thus stricken out, the attorney, etc., matwhose name is subscribed to the pleading, may be directed to pay the costs of the motion, and his failure to pay them may be punished as a contempt of the court. ter cr uncer § 546. Where one or more denials or allegations,contained in a plead- Indefinite ing are so indefinite or uncertain that the precise meaning or application tain allega thereof, is not apparent, the court may require the pleading to be made tions. definite and certain by amendment. 01 |