Martin v. Swearengen

WRIGHT, Ch. J. 1. Pleadings: repetition. It will not be necessary to set forth, at length, the matter contained in the several paragraphs or divisions of the answer. As to some of them, we need not even state their substance, it being 348 sufficient to announce tbe legal rules or principles wbicb must obtain in theirconstruction, and hence control in tbe disposition of tbe case. The petition avers a fulfillment of all tbe conditions therein required, on part of plaintiff; shows that Marshall county has not fully, nor in any manner provided for the wants of his family; that his family' has been in need; that his wife has been economical and industrious, and indeed contained all the allegations necessary to show a complete cause of action. The first and second divisions of the answer make an issue specifically, as well as generally, upon all these allegations. The third and fifth divisions do no more than this. With the issue as it stood under the first and second counts, defendants could prove every fact which they could under the third and fifth. A party has no right, after once presenting his issue fairly and clearly, to repeat the same in as many different forms as his ability to command language will enable him to, and thus spin out and incumber the record, confusing the opposite party, the jury and the court with unnecessary, and even positively vicious matter. Our system of pleadings contemplates among other excellencies, singleness and plainness of issue. Not that a party is to be confined, by any means to one defense; nor is a defendant limited to the statement of the same defense, to one form. Nor is it a good cause for striking a clause in an answer, that the matter thereof might be proved under a general denial. But matter in defense, and a mere denial of the facts stated in the petition, are very different things. When a party has once plainly and clearly, in specific language, denied each of the averments of the petition essential to the recovery, it is a misuse of terms and of the privileges of pleadings, to say that he may do the same thing in several other counts, and call each a defense. Upon this subject generally, see the Davenport Gas Light and Coke Company v. The City of Davenport, 15 Iowa, 6. The matter objected 349 to was redundant. (Rev., § 2846.) The demurrer was properly sustained to the fourth and sixth counts. The matter therein contained is not plead as a partial defense. The pleader professes to answer the whole cause of action, and yet the facts alleged show that it is but a part, if any, of it. Not only so, but it is plead hypothetically, that- is to say, the pleader no where confesses, either expressly or impliedly, that but for the matter in avoidance the action could be maintained. We would not hold parties to great strictness in this respect. But the substance of the rule we understand to still prevail, that a pleader cannot undertake to plead to the whole cause of action, and aver matter which shows a partial defense. If his defense is partial he may, and should, so plead it. So if he proposes to avoid the action by the statement of new matter, he must first, either in words, or by implication at least, confess that which he proposes to avoid. A violation of these rules renders the pleading obnoxious to a demurrer (15 Iowa, 8); Thurb v. Walrath, 6 How. P. R., 196; Loveland v. Hosmer, 8 Id., 215; McDougle v. Gates, 21 Ind., 65; Lewis, Adm'r, v. Arford, Id., 235. Affirmed.