State Ex Rel. Sumner v. Young

Pearson, C. J. The object of pleading is to arrive at a •single, certain and material issue, either of law or fact, which is decisive of the case, and enables the Court to act intelligently in rendering judgment for the plaintiff or the defendant. In this instance there has been a signal failure; and the whole matter is left in utter confusion. Under these circumstances the only course is to direct “ a repleader.” All of the pleadings will be stricken out, and” the parties will begin at the summons, and take a fresh start, with the advantage of knowing that the law is settled in regard to the tenure of office; and that the old Sheriff is entitled to hold until August, 1872, unless there has been a resignation or a forfeiture; and that the mere fact of having been a candidate and taken his chances before the people, does not, in legal effect, amount to a resignation, forfeiture or abandonment. So, the only matter open would seem to be, the effect of not giving the bonds, nor producing the receipts, and the action taken by the Commissioners, referred to in the answers. The Attorneys, it is hoped, will not again be under the necessity of having an amended complaint, and an amended answer ; and will avoid prolixity and confusion by not setting ■out a first cause of action, and a second cause of action, when really there was but one ground to proceed, on ; and of lengthening out the answer by a first defence and a second defence, &c.; when, really all of the allegations combined, con stitute but one defence, i. e. a right to the [office; and the desideratum was a legal and logical statement, numbering the several .facts that constitute the defence, as recommended in the C. C. P_ *584 Above all, by avoiding the legal absurdity of demurring to one or two allegations and leaving the others unanswered, or only replied to, by implication. When there is but one cause of action, or but one defence, a demurrer must cover the whole-ground, or else it will be a nullity. This novelty in pleading, we presume, is to be traced to the-practice in Equity, when it was allowable, as the bill asked for discovery, as well as relief; but under the C. C. P. the complaint' demands judgment, and does not ask for discovery. The plaintiff should also be well advised as to how far he can demand judgment to be inducted into a public office, and for the fees and emoluments, unless he has given the bonds, or has made a tender of them, to the proper authorities, and avers in his complaint a readiness to fill the bonds, as a concurrent act with the admission into the office; so that judgment for his admission may be accompanied by an order for the reception of the bonds. Repleader ordered. This will be certified. Each party pays his own costs, as there is no judgment in this Court. Remanded.