865. [64.]

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Caption. The caption includes the title of the court and cause and names of the parties. The caption is said to be part of the complaint, and is to be regarded as such in construing it: King v. Bell, 13 Neb. 409; McCloskey v. Strickland, 7 Iowa, 259.

Name of court. The name of the court in which the action is brought should be stated in the complaint: Hotchkiss v. Crocker, 15 How. Pr. 336; though it was held that if the court was named in the summons, the omission thereof in the complaint would be a technical irregularity, and disregarded: Van Namee v. People, 6 Id. 198. This was under the old New York code, the provision of which was the same as the present provision of the Oregon code. But if no court was named either in the complaint or summons, the omission would be fatal: Ward v. Stringham, 1 Code R. 118.

Names of parties. The names of all the parties ought to be stated: Hill v. Thatcher, 2 Code R. 3. If the names are once stated they need not be repeated, and where they are set forth in the title of a cause they need not be repeated in the body of the complaint: Stanley v. Campbell, 8 Cow. 235; but they may be designated therein as "plaintiff" and "defendant": Id.; Lowry v. Dutton, 28 Ind. 473.

A defendant being known by two names may be sued by either: Eagleston v. Son, 5 Rob. (N. Y.) 640; or by the one by which he is generally known though not his real name: Cooper v. Burr, 45 Barb. 9; and where one's true name is not not known he may be sued by a fictitious name: see § 103 [101], post; Crandall v. Beach, 7 How. Pr. 271; Gardner v. Kraft, 52 Id. 499; Morgan v. Thrift, 2 Cal. 562.

Initials or middle names are not recognized in law: Van Voorhis v. Budd, 39 Barb. 479. It is not ground of demurrer that the Christian name of one of the plaintiff's does not appear in the record. The court cannot judicially know that one of the plaintiffs had either a Christian or a heathen name, or that it is necessarily untrue that he has forgotten it if he had: Nelson and Doble v. Highland, 13 Cal. 75.

"Junior" is no part of the name: People v. Cook, 14 Barb. 259; S. C., 8 N. Y. 67.

One suing or being sued in a representative capacity should be named as such, as well as be shown by averment to be such: Scranton v. Farmers' Bank, 33 Barb. 527; S. C., 24 N. Y. 424; Smith v. Levinus, 8 Id. 472; Fowler v. Westervelt, 17 Abb. Pr. 59.

A defendant sued by a wrong name

cannot move to set aside the proceedings, but must plead in abatement: Miller v. Stettiner, 7 Bosw. 692; 22 How. Pr. 518; contra: Elliot v. Hart, 7 Id. 25; Dole v. Manley, 11 Id. 138; Gardner v. Clark, 21 N. Y. 399, reversing 6 How. Pr. 449. A mere misnomer is a formal error, which may be amended before or at the trial, or afterwards: Barnes v. Perine, 9 Barb. 202; affirmed 15 Id. 249; affirmed 12 N. Y. 18; Traver v. Eighth Ave. R. R. Co., 6 Abb. Pr., N. S., 46; 3 Keyes, 497; White v. Miller, 7 Hun, 427; and will be disregarded on appeal: Bank of Havana v. McGee, 20 N. Y. 355; Traver v. Eighth Ave. R. R. Co., 7 Hun, 427. Where a defendant was served by a wrong name, but judg. ment was entered in the right one, it was held to be without jurisdiction: Moulton v. De MaCarty, 6 Robt. 470. Date of Pleading. The complaint need not be dated, nor state the time when the action was commenced: Maynard v. Talcott, 11 Barb. 569; Smith v. Holmes, 19 N. Y. 271. Allegations of time relate to that of the commencement of the action, whether in form in the present or past tense: Townshend v. Norris, 7 Hun, 239. The words "her husband" in the caption of the complaint relate to the time when the action was commenced: Broome v. Taylor, 9 Id. 155.

Statement of facts in complaint. By the provision that the complaint must contain a plain and concise statement of the facts constituting a cause of action, is meant the facts which the evidence upon the trial will prove, and not the evidence which will be required to prove the existence of those facts: Wooden v. Strew, 10 How. Pr. 48; Dunning v. Thomas, 11 Id. 281; Zimmerman v. Morrow, 28 Minn. 367; Clay County v. Simonsen, 1 Dakota, 403; O'Donohue v. Hendrix, 13 Neb. 255; People v. Ryder, 12 N. Y. 433; Hyatt v. McMahon, 25 Barb. 457. But this rule does not apply in an action in which all the facts to be stated and the evidence of them are synonymous: Davenport etc. Mfg. Co. v. Taussig, 5 N. Y. Civ. Proc. R. 69, 74.

And all the material facts constituting the cause of action should be alleged: Hayden v. Steadman, 3 Or.550; Stringer v. Davis, 30 Id. 320. As to what are material facts, see post, § 95 [93]. It is said that every fact which the plaintiff must prove to enable him

to maintain his suit, and which the defendant has a right to controvert in his answer, should be distinctly averred and set forth: Clay County v. Simonsen, 1 Dakota, 403; Allen v. Patterson, 7 N. Y. 476; Prindle v. Caruthers, 15 Id. 425; Brown v. Harmon, 21 Barb. 508; McKyring v. Bull, 16 N. Y. 297; McNab v. Lockhart, 18 Ga. 495; Griggs v. St. Paul, 9 Minn. 246; Gray v. Osborne, 24 Tex. 157; Biddle v. Boyce, 13 Mo. 532; and this is important, for if it is not done the complaint will be bad on demurrer: Green v. Palmer, 15 Cal. 444; and a judgment founded on a complaint defective in this respect will be reversed on appeal: Benedict v. Bray, 2 Id. 256; even though no objection was taken below: Russell v. Byron, 2 Id. 86; for an omission of a fact necessary to constitute a cause of action will not be cured by default or verdict: Hentsch v. Porter, 10 Id. 555; though a defective allegation may be thus cured: Russell v. Mixer, 42 Id. 475; or even waived by joining issue upon it: Davis v. Wait, 12 Or. 425. The pleader should not aver conclusions of law in place of the facts: Cook v. Warren, 88 N. Y. 37; but should aver instead the facts as they exist, from which the court will draw the proper legal conclusions: Cropsey v. Sweeny, 27 Barb. 310; Haight v. Child, 34 Id. 186; Page v. Freeman, 19 Mo. 421. The facts to be pleaded are physical facts: Lawrence v. Wright, 2 Duer, 673, which should be set out in such a manner as to permit a distinct traverse and a definite issue: Cook v. Warren, 88 N. Y. 37; Miles v. McDermott, 31 Cal. 271; and pleading fictions is improper: Bush v. Prosser, 11 N. Y. 352; Lackey v. Vanderbilt, 10 How. Pr. 155; Dunning v. Thomas, 11 Id. 281.

Ultimate facts to be alleged. The ultimate and not the probative facts should be pleaded, but it has been held that if facts are pleaded from which an ultimate fact necessarily results, it is the same as though such ultimate fact were specifically pleaded: Osborne v. Clark, 60 Cal. 622. But if probative facts or facts unnecessary to be proved are stated, they may be disregarded upon the trial or stricken out on motion: Miles v. McDermott, 31 Id. 273; Bedell v. Caill, 33 N. Y. 581.

Facts should be stated positively and concisely.. The facts should

certainly be stated positively and in traversable form: Heatherly v. Hadley, 2 Or. 269; Blake v. Eldred, 18 How. Pr. 240; Lewis v. Kendall, 6 Id. 50; State v. Tussts, 28 Ark. 502; State Bank v. Oliver, 1 Disn. 159; Grant v. Bell, 87 N. C. 41; and not hypothetically or in alternative form: Ladd v. Ramsby, 10 Or. 207; Hamilton v. Hough, 13 How. Pr. 14; Wies v. Fanning, 91d. 543; Commonwealth v. Abell, 6 J. J. Marsh. 480; Jamison v. King, 50 Cal. 132; but this does not prohibit the statement of facts upon information and belief: Thackard v. Reid, 1 Utah, 240; Radway v. Mather, 5 Sand. 654; Truscott v. Dole, 7 How. Pr. 221; St. John v. Beers, 24 Id. 377; but see Williams v. First Presbyterian Society, 1 Ohio St. 504; New York etc. Iron Works v. Smith, 4 Duer, 362.

A pleading should contain a concise statement, without unnecessary repetition, of the facts constituting the cause of action or defense, instead of the evidence from which such facts may be inferred: Smith v. Foster, 5 Or. 44. Counts have been held to be entirely unknown to the code system: Sipperly v. Troy etc. R. R. Co., 9 How. Pr. 83; Nash v. McCauley, 9 Abb. Pr. 159; Fern v. Vanderbilt, 13 Id. 72; Fox v. Penn. R. R. Co., 2 Handy, 160; Mays v. Lewis, 4 Tex. 38; but in Wilson v. Smith, 61 Cal. 209, it is held that the plaintiff may set out his facts in different forms when there is a fair and reasonable doubt of his ability to safely plead them in one mode only.

Arguments, inferences, and matters of law should not be stated. A legal conclusion states no facts, but merely matter of law: Hatch v. Peet, 23 Barb. 575; and a defect in this regard is fatal if the objection is properly raised by the adverse party: Simpson v. Prather, 5 Or. 86; Ramsey v. Erie R. R. Co., 38 How. Pr. 193; 7 Abb. Pr., N. S., 156; Van Schaick v. Winne, 16 Barb. 89; Campbell v. Taylor, 2 West Coast Rep. 541; Larimore v. Wells, 29 Ohio St. 13; Dial v. Tappan, 20 S. C. 167, 176; State v. Hudson, 13 Mo. App. 61; Garner v. McCullough, 48 Mo. 318; Tatum v. Tatum, 19 Ark. 194; Randall v. Shropshire, 4 Met. (Ky.) 327; Hershfield v. Aiken, 3 Mont. 442; Taylor v. Blake, 11 Minn. 255. Among such are an alle gation that a certain act was illegal: People v. Lothrop, 3 Col. 428; or contrary to the statute: Smith v. Lock

wood, 13 Barb. 209; that a party is Oct. 11, 1862, entitled to a thing: Drake v. Crofoot, $65. 10 How. Pr. 377; that it was one's duty to do, or not to do, a certain act: City of Buffalo v. Holloway, 7 N. Y. 493; that a party is indebted: Merritt v. Millard, 5 Bosw. 645; Roberts v. Treadwell, 50 Cal. 520; that a contract is void for want of sufficient consideration: Hammond v. Earle, 58 How. Pr. 428; and the like. It is not a legal conclusion to allege that title was derived by gift: McCarty v. Tarr, 83 Ind. 444; that a person is of unsound mind: Gharky's Estate, 57 Cal. 274; Riggs v. Am. Tract Soc., 84 N. Y. 330; or that a covenant of seisin has been broken, and that defendant was not the true owner when he conveyed and therefore was not seised: Wooley v. Newcombe, 58 How. Pr. 480; S. C., 87 N. Y. 603; or that the plaintiff is the owner of certain lands: Commissioners v. Young, 18 Kan. 445; Railroad v. Leahy, 12 Id. 124.

A fact necessarily understood or implied need not be alleged: Partridge v. Badger, 25 Barb. 170; Malcolm v. O'Reilly, 89 N. Y. 156. Thus, that a deed was executed implies its delivery and acceptance, and these need not be alleged: Thorp v. Keokuk C. Co., 48 N. Y. 253; that commercial paper was indorsed or made imports delivery: Prindle v. Carruthers, 15 Id. 425; Lafayette Ins. Co. V. Rogers, 30 Barb. 491; and so do the words "duly assigned" import delivery and acceptance: Hoag v. Mendenhall, 19 Minn. 335.

Facts which are judicially noticed are to be regarded as matters of law, and should therefore not be alleged: Cook v. Tallman, 40 Iowa, 133. Among such are public laws of a state or the United States: Haight v. Child, 34 Barb. 186; Swinnerton v. Columbian Ins. Co., 37 N. Y. 174; Hewett v. Harvey, 46 Mo. 368; Brown v. State, 11 Ohio, 276; Brown v. Harmon, 21 Barb. 508; Platt v. Crawford, 8 Abb. Pr., N. S., 297; Morris v. Davidson, 49 Ga. 361; Bagly v. Chubb, 16 Gratt. 284; Butler v. Robinson, 75 Mo. 192; matters of public history: Swinnerton v. Columbian Ins. Co., 37 N. Y. 174; Payne v. Treadwell, 16 Cal. 220; Rice v. Shook, 27 Ark. 137; Smith v. Stevens, 82 Ill. 554; Howard v. Moot, 64 N. Y. 262; Simmons v. Trumbo, 9 W. Va. 358; Williams v. State, 67 Ga. 200; geography of the country: Hinck

ley v. Beckwith, 23 Wis. 328; Winnipiscogee Lake Co. v. Young, 40 N. H. 420; People v. Snyder, 41 N. Y. 397; Wright v. Hawkins, 28 Tex. 452; Gilbert v. Molnie, 19 Iowa, 319; treaties or proclamations: Lacroix v. Sarrazin, 15 Fed. Rep. 489; United States v. Reynes, 9 How. 127; Dole v. Wilson, 16 Minn. 525; Dunning v. New Albany etc. R. R. Co., 2 Ind. 437; Perkins v. Rogers, 35 Ind. 124; S. C., 9 Am. Rep. 639; and see Hill v. Baker, 32 Iowa, 302; S. C., 7 Am. Rep. 193; matters of science and art: Lukev. Calhoun Co., 52 Ala. 115; Adler v. State, 55 Ala. 16; State v. Goyette, 11 R. I. 592; Brown v. Piper, 91 U. S. 37; People v. Chee Kee, 61 Cal. 404; Clough v. Goggins, 40 Iowa, 325; Briffit v. State, 58 Wis. 39; S. C., 46 Am. Rep. 631; seals of foreign states: Lazier v. Westcott, 26 N. Y. 146; Lincoln v. Battelle, 6 Wend. 475; Stauglein v. State, 17 Ohio St. 463; 106 U. S. 546; or public offices: State v. Williams, 5 Wis. 308; Ragland v. Wynn, 37 Ala. 32; Dewees v. Colorado Co., 32 Tex. 570, etc. Courts will judicially notice their own records: State v. Hoeflinger, 35 Wis. 393; State v. Bowen, 16 Kan. 475; Robinson v. Brown, 82 Ill. 279; State v. Schilling, 14 Iowa, 455; and officers and their signatures: Mackinnon v. Barnes, 66 Barb. 91; Masterson v. Le Claire, 4 Minn. 163; Norvell v. McHenry, 1 Mich. 227. And see Himmelmann v. Hoadley, 44 Cal. 213. But they will not take notice of municipal ordinances: Harker v. Mayor etc., 17 Wend. 199; Garvin v. Wells, 8 Iowa, 286; Porter v. Waring, 69 N. Y. 250; Lucker v. Commonwealth, 4 Bush, 440; Winona v. Burke, 23 Minn. 254; nor of private statutes, as will be seen further in this note; nor of customs or usages: Goldsmith v. Sawyer, 46 Cal. 209; Sullivan v. Heuse, 2 Col. 424. Consistency in pleading. The allegations in a complaint should be consistent, and if not so the pleading will be construed against the pleader: Hillebrant v. Booth, 7 Tex. 501; Building Association v. O'Connor, 29 Ohio St. 655; Butler v. Kaulback, 8 Kan. 671. A complaint which seeks to affirm a contract and also to set it aside is bad for inconsistency: Trimble v. Doty, 16 Ohio St. 129; so is a complaint claiming for a conversion and also for redelivery of the property: Maxwell v. Farnham, 7 How. Pr. 236; a complaint for rent, and also for use and occupation: Dean v. Leonard, 9 Minn.

190; or seeking to recover on an express promise and also on an implied promise for the same thing: Hewitt v. Brown, 21 Minn. 163. If Wilson v. Smith, 61 Cal. 209, cited in one of the preceding subdivisions of this note is good law, some of these cases are not then law, for, that case holds that facts constituting the cause of action may be set out in more than one form if there is fair or reasonable doubt of the pleader's ability to safely plead them in one mode only.

Allegations of time. — If time is material, it must be alleged: Moxley v. Moxley, 2 Met. (Ky.) 311; People v. Ryder, 12 N. Y. 433. It is not usually material, except when describing a written instrument bearing a written date: Howland v. Davis, 40 Mich. 545; or alleging performance of a condition precedent to a right of action: Lockwood v. Bigelow, 11 Minn. 113; Vance v. Blair, 18 Ohio, 532. When it is material and essential to the cause of action, it must be stated with precision and positively; an allegation that

66

on or about a certain day," etc., will not be sufficient: Lockwood v. Bigelow, 11 Minn. 113, and there is no presumption in favor of the pleader in regard to time: Balch v. Wilson, 25 Id. 289; Williams v. Nesbit, 65 Ind. 171.

Allegations of place are generally material if the matters pleaded are local in their nature: Vermilya v. Beatty, 6 Barb. 429. Thus, if one contracts to do a certain thing at a particular place, an allegation of failure to do it at that place is necessary to a good complaint: Clark v. Dales, 20 Id. 42. Where a contract was void at the place where it was made, the place where it was made must be averred to show its invalidity: Thatcher v. Morris, 11 N. Y. 437.

Allegations of quantity or value. Great precision is not required in this regard: Martin v. Kanouse, 2 Abb. Pr. 330; and they generally need not be proved as alleged: Chamblee v. McKenzie, 31 Ark. 155. Strictness as it regards allegations of quantity is not generally required, unless the subject of the averment is a record, or written instrument, or an express contract: Gwinnet v. Phillips, 3 Term Rep. 643; Van Rensselaer v. Jones, 2 Barb. 643. In an action for goods sold, or for services, the allegation of the value thereof in the complaint is held material: Gregory v. Wright, 11 Abb. Pr. 417;