Geroux's Admr. v. Graves

The opinion of the court was delivered by Rowell, J. In our practice, motions to dismiss new counts are not like motions to dismiss the action, which are confined to ■defects apparent on the face of the record or papers on inspection ; but they are another way of doing what in England would be done by a rule nisi. There the defendant, on motion, obtains a rule that the new count to which he objects be stricken out unless (nisi) the plaintiff shows cause to the contrary; and this rule is afterwards, on further motion, made absolute or discharged, as the case may be. 1 Tidd. Pr. [*478] ; Brown v. Crump, 6 Taunt. 300. Hence, a motion to dismiss a new count is, in effect, like a motion to strike it out, or to strike it from the files; and in disposing of it, the court is not confined to an inspection of the original declaration and of the new count in determining whether both are for the same cause of action or not, but it may go outside of the pleadings, to satisfy itself how the fact is, the same as it can when the question arises on a motion for leave to file the new count, in which case it may clearly go outside, for whether for the same cause of action or not is largely a question of fact for the purposes of amendment. Hill v. Carpenter, 34 Vt. 535; Boyd v. Bartlett, 36 Vt. 9; Lycoming Fire Ins. Co. v. Billings, 61 Vt. 310. It does not appear merely from an inspection of the pleadings that the new count filed in this case is for a different cause of ■action, and hence there was error in dismissing it as matter of law on such inspection; and there was nothing more, as the exceptions show. We are inclined to think that it sufficiently appears from such inspection that the original count and the new count are for the same cause of action ; but if the court below was not satisfied by this, it should, in its discretion, have inquired further. Lycoming Fire Ins. Co. v. Billings, above referred to, is full authority on this point. [284] As to the demurrer. If the original declaration be treated as founded on a cause of action accruing to the personal representative of the deceased for the benefit of the next of kin, it is-manifestly defective in not alleging that he left next of kin who were living at the time of suit brought. Wescott v. Central Vermont R. R. Co., 61 Vt. 438. If it be treated as founded upon a cause of action accruing to the deceased, it is probably defective in not showing that he lived a time after his injury.. Construing the pleading most strongly against the pleader, it is-probably to be taken on demurrer as alleging that he was instantly killed. But however this may be, the plaintiff does-not claim that there was error in sustaining the demurrer and adjudging the original declaration insufficient. Judgment affirmed as to sustaining the demurrer, hut reversed, as to dismissing the new count, and cause remanded.