Select Cases on Code Pleading (Classic Reprint)

Excerpt from Select Cases on Code Pleading

The rules applicable at the opening of a trial of issues of fact, before going into evidence, assume that the present is a fit occasion, but leave open the inquiries: Whether the pleadings present a question to be tried; and of a nature to be Within the jurisdiction of this court? And, Are all indispensable parties before the court? The same stage of proceedings may raise the further questions: What mode of trial do the contents of these pleadings call for? And, In what order shall the parties and issues be heard?

The opening by counsel, and the resulting reception of evi dence, introduce such modification of this aspect of the case as is required by the practical construction which the parties, by their contention in the presence of the court. Put upon the language in which they have framed the issue.

The court still holds them to questions within the general scope of the pleadings, but disregards technical objections which the objector by his own course has already disregarded.

The course of the trial, proceeding on this relaxation of the original rules, frequently obscures the lines which strict adherence to the pleadings might have preserved and when the time for submission of the cause arrives, the question whether each party gave his adversary fair notice of the question which they have actually tried has gone by, for each has taken his part in trying it and the time for applying the rules of order as to the method of trial has also gone by; while the question what sort of judg ment can the court properly render, and perpetuate on its record, and enforce by its process, on the foot of these pleadings, comes into prominence.

These distinctions must be borne in mind by whoever would master the modern principles and rules of pleading.

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