Ward v. Frick Co.

Atkinson, Justice. The pleading act of 1893 (Acts 1893, p. 56) is highly remedial in its purposes. It was not designed to advance the interests of plaintiff's alone, but its purpose, while simplifying procedure, was to make more speedy the trial of civil cases by rendering more certain the issues to be tried. It therefore requires that all exceptions to declarations and pleas shall be heard and determined .at the first term; and before they can be heard, they must at that term first be taken. If the declaration of the plaintiff is insufficient in law, or if for any reason the same be not sufficiently full to enable the defendant to plead thereto, he shall make exception at the first term, and, failing in this, will be held to have waived any objection to the declaration curable by amendment. Inasmuch as all exceptions to pleas are likewise required to be heard and determined at the first term, it is the duty of the defendant at that term to make his appearance and file such pleas as he may deem proper to his defense. If the plaintiff does not at that term except to the sufficiency of such pleas, he will be held to have waived any objection thereto which may be cured by subsequent amendment. . For this reason, when a [806] defendant was sued upon a promissory note unconditional in its terms, appeared and at the first term filed a substantial defense to the merits of the plain tiff’s cause of action, but omitted to swear to the same, no objection having béeil filed to this plea at the first term,'the plaintiff will be held to have waived this defect; and at a subsequent .term .of the court, when the cause .was called in its order; it was proper that the- court should allow the defendant then to make oath thereto. The present case illustrates the wisdom of the principle upon which the statute under review is predicated. It prevents either party being taken by surprise, and places the responsibility upon the respective parties of taking at the first term such éxceptions to the pleadings of the other as will entitle them to the complete remedial operation of this statute. Let the judgment of the court below be Reversed.