The Green Bag
452
with no other pleadings than an informal statement of claim in which no attempt is made to state a cause of action, and no diffi culty from want of sufficient record has arisen. The truth is, a system of pleadings designed solely to afford notice to the respec tive parties will meet this need completely. If it provides a method by which the parties have suflicient notice, we may be sure that others who have occasion to know will find the statement and indorsed summons of a simpler procedure entirely adequate. The better it fullfils the purpose of notifying the parties of the claims and defenses of their adversaries, the better a system of pleading will meet the requirement of a record by which to maintain a defense of res judicata. As Mr. Justice Holmes has put it so aptly, the basis of requirement that a pleader set
out all the legal elements of his case in the form of averments of issuable facts, is ‘the inability of the seventeenth-century common law to understand or accept a pleading that did not exclude every misinterpretation ca pable of occurring to an intelligence fired with a desire to pervert.’ The principle of making nothing depend upon rules of procedure beyond securing to the parties fair opportunity to meet the case against them and full oppor tunity to make their own case, is decisive. Requiring a statement of a cause of action afiords opportunity for procedural points as such without any gain to substantive rights. Notice to the parties is enough. Neither court nor counsel requires to be told what the elements are that must go to make up the claim or defense asserted."
Hence a further principle may be
laid down :— V.
The sole oflice of pleadings should
be to give notice to the respective parties of the claims, defenses and cross-demands asserted by their adversaries; the pleader should not be held to state all the elements of claim, defense or cross-demand, but merely to apprize his adversary fairly of what such claim, defense or cross demand will be. Another principle may be suggested
without discussion :— VI.
No cause, proceeding or appeal
should be thrown out solely because brought in or taken to the wrong court or wrong
venue, but if there is one where it may be brought or prosecuted, it should be
transferred thereto and go on there, all prior proceedings being saved. This principle, which obtains now in the appellate procedure of Illinois,"
should be extended to every part of procedure. Especially should this be done with respect to venue.
It was
an abuse ever to introduce the idea of venue as a place where suit must be
brought.
This is particularly true in
equity, where there never was such
a thing as venue until introduced by statutes in some of our states. At law, the question should be one of place of trial, as it was at common law, and if fixed wrongly, the cause should be transferred to the proper county, if any one asks for such an order.“
VII. The equitable principle of com plete disposition of the entire controversy between the parties should be extended to its full content and applied to every type of proceeding. To carry out this principle fully, five propositions may be made :— (l) The courts should have power and it should be their duty in every sort
of cause or proceeding to grant any relief or allow any defense or cross-demand which the facts shown and the substantive law may require. This proposition is argued fully, so far as it involves administration of legal
and equitable remedies in the same pro ceeding, in the paper already referred to." But a further question arises, not there discussed, as to the advisability of
maintaining separate forms of action for legal relief.
Mr. Gilbert does this,
‘7 Practice Act of 1907, 5102. ‘' See California Code Civ. Proc.. 530; New York Code Civ. Proc., 5987; Colorado Code Civ. Proc., Q30; Wisconsin, §2621. But the Wisconsin Code prescribes too much detail as to making the change and all our codes lay down too man rules as to where causes must be tried. Cf. Conso idated Rules of Law the Supreme Court for Ontario. rule 529. “4 Ill.v Rev., 491, 498-501.
