nently given its intended effect, the language of the court, spoken by Dixon, Ch. J., in Morse v. Gilman, has not been improved upon. It has been quoted again and again and not too often. More and more it should be appreciated so as to prevent any possibility of a complaint being condemned by the ancient rules for testing it."

Speaking of the interpretation given the original New York Code by the courts of that state, the Wisconsin court said in McArthur v. Moffet, 143 Wis. 564, 128 N. W. 445: "The cold, not to say inhuman, treatment which the infant code received from the New York judges is matter of history. They had been bred under the common-law rules of pleading and taught to regard that system as the perfection of logic, and they viewed with suspicion a system which was heralded as so simple that every may would be able to draw his own pleadings. They proceeded by construction to import into the code rules and distinctions from the common law system to such an extent that in a few years they had practically changed it that it could hardly be recognized by its creators." 250.

SO

Theory of case and vari

ance.

See also "Judicial application in general," note 53, ante.

In Hollister v. Bell, 107 Wis. 198, 83 N. W. 297, the court said: "The idea that a plain action at law, as to which there is an entire failure of proof, can be turned into an action in equity and a recovery be had such as that jurisdiction in any event can afford on the facts, does not find support in the decisions of this court. If an action be brought and tried as an action at law, such relief only is obtainable as is afforded on the facts in that form of action."

In Bruheim v. Stratton, 145 Wis.

271, 129 N. W. 1092, the court said: "In the first place there were sufficient allegations in the complaint to make a good cause of action in conversion, and what the idea of the pleader was when he drew the complaint was immaterial. If the allegations were sufficient to constitute a cause of action in conversion the plaintiff was entitled to have it treated as such by the court, and the fact that the court had no jurisdiction of the action of trespass upon the land in another state rendered the allegations respecting a cause of action in trespass merely surplusage, and, there being sufficient allegations aside from these to make the complaint one in conversion, it should have been so treated by the court."

A complaint alleged that the defendant was indebted for property sold and delivered to him, but the evidence showed that he wrongfully converted the property. Held, that the variance was immaterial, as the plaintiff had the right to waive the tort and sue upon contract. Walker v. Duncan, 68 Wis. 624, 32 N. W. 689.

In Meinshausen V. Gettleman Brewing Co., 133 Wis. 95, 113 N. W. 408, the complaint was based upon the theory of express contract, and on trial it was sought to amend, changing the cause of action to implied contract. On the ground that this set up a new cause of action, barred by limitation, such amendment was held improper.

A complaint will be construed as stating but a single cause of action, if reasonably susceptible of that construction, though the language is capable of construction as stating several causes; and if the intention of the pleader can be discovered as to the nature or type of action, that intention will be given effect if possible. Grunert v. Brown, 119 Wis. 126, 95 N. W. 959.

or

The nature of a complaint, as to the kind of action intended and whether sounding in contract tort, law or equity, is to be determined from a consideration of all facts alleged, rather than from any isolated part. If it then appears, for example, that a contract referred to therein is alleged chiefly or wholly by way of necessary inducement, and that emphasis is laid on wilful or wrongful disregard of this duty, the action is properly regarded as in tort; but if a contract is stated as the basis of the action and a wilful or negligent breach of duty is not stressed, but rather a breach or default in carrying out the contract, the action is on tract.

con

If it is necessary in order to avoid a plea of limitations, or for any other reason, to make clear the theory of the pleader, an express statement in his complaint as to the theory on which he seeks a recovery is permissible and sound practice. Bryant's Wisconsin Pleading and Practice (2d Ed.), § 267. See also Johnston v. Charles Abresch Co., 123 Wis. 130, 101 N. W. 395, holding that an express waiver of any tort and declaration that the plaintiff "sues herein on implied contract" may be controlling in doubtful case.

252. Wyoming.

253.

a

– Statutory provisions. The distinctions between actions

Ohio, not New York, followed.

"Having established the civil action to take the place of all the pre-existing actions abolished, the code proceeded to provide rules of procedure therefor, including rules of pleading, following the Ohio rather than the New York method of procedure, which differed in some matters of practice, but in principle and in most respects were substantially the same." Allen v. Houn, 30 Wyo. 186, 219 Pac. 573.

1. Scope of Rule.

The above Rule deals with the manner in which a civil action is commenced.

Appearing before the Committee of the Judiciary of the House of Representatives on March 2, 1938, Edgar B. Tolman said: "Under Rule 3 when a question arises as to which of two courts has jurisdiction of a controversy that has been brought at about the same time in two courts, this Rule will enable you to know in which court the suit was commenced first, and when there is a race between creditors or other conflicting interests, it can be determined what creditor began his suit first." Hearings, p. 73.

2. Hammond's comment.

Addressing the Judicial Conference of the Fourth Circuit regarding the second draft of the proposed rules, Edward H. Hammond said: "As a result largely of the many adverse criticisms of the hip-pocket system by the bench and bar, among the strongest of which were those so ably expressed here by this con

ference last year, those members of the committee who favored that system concurred, reluctantly, as will be seen from the note to the Supreme Court (pp. 5, 6) in recommending to the court the adoption of the present system. Before leaving the subject of commencement of actions, I should perhaps call attention to the fact that the rule no longer contains the provision for automatic abatement if the summons and complaint are not served within 60 days. It is believed that the general rule as to dismissals for failure to prosecute or comply with the rules or orders of the court (Rule 42 (b)) will afford to a defendant the protection against a failure to prosecute intended by the former abatement provision." 23 A. B. A. Jour. 629, 630.

Note: Rule 42 (b) thus referred to is now Rule 41 (b).

3. Mitchell's comment.

Addressing the open forum of the Judicial Section of the American Bar Association at Kansas City regarding the second draft of the pro

posed rules, William D. Mitchell said: "In the preliminary draft we presented two alternative methods of beginning an action. One provided that to begin a suit it is necessary to file a complaint with the clerk of court, have summons issued under the seal of the court and delivered to the marshal for service, and that all other pleadings and papers must be filed as well as served. The other method proposed was that permitted in many code states, which allows the lawyers to prepare the summons and complaint in their own offices and serve them without filing and allows all papers to be withheld from the files until the point is reached at which some judicial action is asked for. All those members of the Advisory Committee who had practiced under the latter system favored it. Those members who had not practiced under this system were either opposed to it or doubtful. The reaction from the profession has been overwhelmingly in favor of the first system, which requires the complaint to be filed when the action is commenced. The Advisory Committee in its last draft has, therefore, adopted this system." 23 A. B. A. Jour. 966.

4. Rule grounded in equity procedure.

Former Federal Equity Rule 12 provided that whenever a bill was filed, and not before, the clerk should issue the process. This was in accordance with settled principles of equity practice, and the corresponding method prescribed by above Rule for commencing suit is the classic way of initiating suits in equity. Thus, in Daniell's Chancery Pleading and Practice (6th Am. Ed.), 2, it is said: "A suit on the equity side of a court of chancery, on behalf of a subject, is ordinarily commenced by preparing a petition, containing a statement of the plain

tiff's case, and praying the relief which he considers himself entitled to receive."

In Farmers' Loan & Trust Co. v. Lake Street Elev. R. Co., 177 U. S. 51, 44 L. Ed. 667, 20 Sup. Ct. 564 (1900), the court said, citing Story's Equity Pleading: "A suit in equity is commenced by filing a bill of complaint." In Humane Bit Co. v. Barnet (C. C. N. J. 1902), 117 Fed. 316, it was stated that, in England, suits in equity have always been instituted by preferring a bill in the style of a petition, directed to the lord chancellor or other proper person, it being provided by statute that no process shall issue until after the suit has been so begun, and that in the United States the filing of the bill is the commencement of the suit.

By Michigan statute, suits in chancery shall be commenced by filing bills of complaint in accordance with the rules of court. Mich. Comp. Laws (1929), § 14068; Mich. Stats. Ann. § 27.735.

5. Code provisions.

The provision that an action is commenced against a defendant by filing a complaint with the court has been a common one in the codes, prescribing the practice for a merged law and equity. See Canal Zone Code (1934), T. 4, 161; Rev. Code Ariz. (1928) 3713; Crawford & Moses Ark. Digest (1921), 1049 (a civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon); Deering's Cal. Code of Civ. Proc. (1931) 405; 1 Idaho Code Ann. (1932) 5-501; Rev. Stats. Kan. Ann. (1923) 60-301 (similar to Arkansas); Rev. Codes Mont. (1921) 9105; Comp. Stats. Neb. (1929) 20– 501 (similar to Arkansas); 4 Nev. Comp. Laws (1929) 8573; New Mexico Stats. Ann. (1929) 105–301;

2 Page's Ann. Ohio Gen. Code (1926), 11279 (similar to Arkansas); 1 Okla. Stats. (1931) 164 (similar to Arkansas); 1 Ore. Code Ann. (1930) 1-501; 5 Vernon's Ann. Tex. Stats. (1926) 1971; Wyo. Rev. Stats. (1931) 89801 (similar to Arkansas). The Missouri Code provides that suits may be instituted in courts of record, except when the statute law of this state otherwise provides, either, first, by filing in the office of the clerk of the proper court a petition setting forth the plaintiff's cause or causes of action, and the remedy sought, and by the voluntary appearance of the adverse party thereto; or, second, by filing such petition in such office, and suing out thereon a writ of summons against the person or of attachment against the property of defendant. 1 Rev. Stats. Mo. (1929) 724.

Courtright's Colo. Ann. Code (1933), 34 provides that civil actions shall be commenced by the filing of a complaint, with the clerk of the court in which the action is brought, or by the service of a sum

mons.

Rev. Laws Hawaii (1935), 4040 provides that every civil action in a court of record shall be commenced by petition. The outline forms of the verified petition for process, by which the action must be commenced, are set out in Rev. Laws Hawaii (1935), 4041, 4042.

Civil actions in the courts of Puerto Rico are commenced by filing a complaint. Code of Civ. Proc. of Puerto Rico (1933), 87. It is further provided that "An action is commenced within the meaning of this Title, when the complaint is filed." Code of Civil Procedure of Puerto Rico (1933), 38. (The Title referred to is "Time of Commencing Civil Actions.")

It is quite commonly provided by the codes that a copy of the complaint need not be filed with the

summons; ample provisions being made, however, for the defendant receiving it.

6. Other state provisions.

Lawyers in a number of states will not be accustomed to commencing actions in accordance with the above Rule. This is true of those practicing in such states as Minnesota, New York, North Carolina, North Dakota, South Carolina, South Dakota, Utah and Wisconsin, where under the Codes civil actions are commenced by service of a summons. The same is true of lawyers in such states as Iowa, where it is provided that action in a court of record shall be commenced by serving the defendant with a notice, signed by the plaintiff or his attorney, informing him of the name of the plaintiff, that a petition is, or on or before the date named therein will be, filed in the office of the clerk of the court wherein action is brought. (Code of Iowa (1935) 11055); and in Florida, where the statute provides that a personal suit at law is begun by filing in the court in which the suit is to be commenced a praecipe or memorandum, stating the names of the parties, the nature of the action and the amount of the debt or damages for which the plaintiff sues; which praecipe shall be signed by the plaintiff or his attorney. Upon the filing of such praecipe or memorandum, there shall be issued from such court a summons ad respondendum, which shall be called the original. 2 Comp. Laws Fla. Ann. (1927) 4229.

In the first draft of rules, submitted in May, 1936, the first alternative Rule, dealing with the commencement of actions, prescribed the manner followed in New York, Minnesota and other states herein named. In recognition of the sentiment of a majority of the bar,