table functions, a party stating facts constituting a good cause of action, but making a mistake as to the kind of relief sought, is not required to go through the useless form of a dismissal in order to get upon the right side of the calendar. In such case the statute expressly provides that the error shall not work an abatement or dismissal of the action, but merely a transfer to the proper docket." Reiger v. Turley, 151 Iowa 491, 131 N. W. 866. The policy of life insurance declared on provided that no action thereon could be maintained unless begun within one year after the death of the insured. The action was brought as an action at law within that time, and the petition set up all the facts entitling plaintiff to relief; but the relief which he was entitled to was equitable and not legal. (See 72 Iowa 242.) After the lapse of more than a year, and after this court had reversed a judgment in his favor, plaintiff amended his petition so as to demand the equitable relief to which this court held him to be entitled. Held that such amendment was germane to the original petition, and was properly allowed, and that the action dated from the time the original petition was filed, and not from the date of the amendment. Newman v. Covenant Mut. Ins. Ass'n, 76 Iowa 56, 40 N. W. 87.

When a petition prays judgment for a certain sum "with interest and costs" recovery may be had for interest on the sum claimed from the commencement of the suit, but not for interest accrued before that time. Haven v. Baldwin, 5 Iowa 503; Butcher v. Brand, 6 Iowa 235; Anderson v. Kerr, 10 Iowa 233; Galley v. Tama County, 40 Iowa 49; Barton v. Smith, 7 Iowa 85; Hefferman v. Burt, 7 Iowa 320; Lyon v. Byington, 10 Iowa 124.

the prayer must be broad enough to cover all the relief which the petition entitles the party to, as with the exceptions below stated, the relief will be confined to what is prayed for. Simplot v. Simplot, 14 Iowa 449; Cooper v. Frederick, 4 G. Gr. 403; Herring v. Neely, 43 Iowa 157; Hait v. Ensign, 61 Iowa 724, 17 N. W. 163; Wilson v. Horr, 15 Iowa 489; Laverty v. Sexton, 41 Iowa 435; Hoskins v. Rowe, 61 Iowa 180, 16 N. W. 78; Pond v. Waterloo Agr. Works, 50 Iowa 596; Casady v. Woodbury County, 13 Iowa 113; Johnson v. Mantz, 69 Iowa 710, 27 N. W. 467. The court cannot, even under a general prayer for relief, make a decree, or grant relief which the facts pleaded do not justify. Casady v. Woodbury County, 13 Iowa 113; Johnson v. Mantz, 69 Iowa 710, 27 N. W. 467; Walker v. Walker, 93 Iowa 643, 61 N. W. 930. Under a general prayer for relief the decree may grant relief other and different from that specially prayed for, and as warranted by the pleading. Simplot v. Simplot, 14 Iowa 449; Casady v. Woodbury County, 13 Iowa 113; Laverty v. Sexton, 41 Iowa 435; Hoskins v. Rowe, 61 Iowa 180, 16 N. W. 78; Pond v. Waterloo Agr. Works, 50 Iowa 596; Thomas v. Farley Mfg. Co., 76 Iowa 735, 39 N. W. 874; Searle v. Fairbanks, Morse & Co., 80 Iowa 307, 45 N. W. 571; Iler v. Griswold, 83 Iowa 442, 49 N. W. 1023; Hait v. Ensign, 61 Iowa 724, 17 N. W. 163; Rees v. Shepherdson. 95 Iowa 431, 64 N. W. 286. But a decree cannot be granted against one from whom no relief is demanded in the petition. Mobley v. Dubuque Gas Light & Coke Co., 11 Iowa 71.

285.

--

Cases.

- Ultimate facts.

Ultimate facts and not evidence should be pleaded. Manwaring v. Reynolds, 108 Kan. 777, 196 Pac. 1086.

A plaintiff is entitled to such relief as the allegations of the petition and the evidence in support thereof entitle him, irrespective of the exact wording of the prayer for relief. Shelley v. Sentinel Life Ins. Co., Kan. 69 P. (2d) 737.

Plaintiff should be given whatever relief the facts entitle him to, even if he has misconceived their legal effect. United States Tire Co. v. Kirk, 102 Kan. 418.

"It is well settled in this state that the prayer of the petition forms no part of it, and that relief may be granted in accordance with the facts stated in the petition rather than pursuant to its prayer." Smith v. Smith, 67 Kan. 841, 73 Pac. 56.

Rule applied that a litigant is entitled to whatever relief her cause of action pleaded and proved, or admitted and denied, entitles her, whether such relief is included in the prayer of her petition or not; and an amendment to the prayer is not a prerequisite to such relief. Snehoda V. First Nat. Bank in Wichita, 115 Kan. 836, 224 Pac. 914. 289.

Alternative relief. Relief may be demanded in the alternative where plaintiff is not certain as to what relief the court will grant. Henry v. McKittrick, 42 Kan. 485, 22 Pac. 576.

defendant, and must demand the specific relief to which the plaintiff considers himself entitled; and may contain a general prayer for any other relief to which the plaintiff may appear to be entitled. Carroll's Kentucky Codes (1927), § 90.

If no defense be made, the plaintiff can not have judgment for any relief not specifically demanded; but, if defense be made, he may have judgment for other relief, under a prayer therefor. Carroll's Kentucky Codes (1927), § 90.

293.

294.

Content of complaint. The court of appeals of Kentucky said in Hill v. Barrett, 14 B. Mon. 83: "Although the Code of Practice has abolished not only the pre-existing forms of action, but also the pre-existing forms of pleading, and has declared, that henceforth, the forms of pleading and the rules by which their sufficiency is to be determined, are those prescribed in the Code itself, it adopts what has always been a cardinal rule with respect to the allegations of the plaintiff, now called the petition, that it must contain a statement of the facts constituting the plaintiff's cause of action, with scarcely any other specific requisition, but that it be made in ordinary and concise language, without repetition. But while the code contains a very few additional rules with respect to the mode or manner of alleging the facts relied on as constituting a cause of action, it does not, and could not, particularize the facts necessary to be stated, nor give any affirmative rule more special or more instructive than that which requires that the petition shall contain the facts constituting the plaintiff's cause of action. The code make no change in the law which determines what facts constitute a cause of action, except that by reducing all the

forms of action to the single one by petition, it changes the question whether the plaintiff's statement of his case shows facts constituting a cause of action in trespass, or assumpsit, or other particular form into the more general question, whether it shows facts which constitute a cause of action at all, that is, whether the facts stated are sufficient to show a right in the plaintiff, an injury to that right by the defendant, and consequent damage. What facts do in this sense, constitute a cause of action, is determined by the general rules or principles of law respecting rights and wrongs, and by a long course of adjudication and practice, applying those rules to particular actions, under the long-established rule of pleading, that the declaration must state the facts which constitute the plaintiff's cause of action. In adopting this fundamental rule of pleading, the code must be considered as adopting also the prevailing and authoritative exposition of it as under

stood

at the time, except so far as the code itself, either expressly or by necessary implication, requires to be stated which need not

facts before have been stated, or dispenses with the statement of facts formerly deemed necessary. The code does not authorize a recovery upon a statement of facts which did not constitute a cause of action in some form, before the code was adopted. And, therefore, the former precedents, and rules, and adjudications, may now be resorted to as authoritative, except so far as they

relate

"In actions for personal injuries resulting from negligence, it has always been regarded as sufficient for the plaintiff to allege, in general terms, that the injury complained of was occasioned by the carelessness and negligence of the defendant. He has not been required to state the circumstances with which the infliction of the injury was accompanied, in order to show that it had been occasioned by negligence. An allegation of the extent of the injury, and of the manner in which it was inflicted, has always been regarded as sufficient." Chiles V. Drake, 59 (2 Metc.) Ky. 146, 74 Am. Dec. 406. See also Monroe v. Standard Sanitary Mfg. Co., 141 Ky. 549, 133 S. W. 214; Lipscomb v. Cincinnati, N. & C. St. Ry. Co., 239 Ky. 587, 39 S. W. (2d) 991.

In McAllister v. Chesapeake & O. R. Co., 243 U. S. 302, 61 L. Ed. 735, 37 Sup. Ct. 274 (1916), the court held that a cause of action against railway company is stated in Kentucky by allegations in the petition that on a specified day when plaintiff's decedent "was at or near a public crossing ・ ・ a place in the town of Fullerton where numerous people were accustomed to be and travel," as the railway company well knew, without fault on his part, and while in plain view of the railway company's agents and servants, he was negligently and wantonly

to the distinctions between the different forms of actions, or to merely formal or technical allegations, and except so far as particular allegations formerly deemed sub

stantial

far

as

are dispensed with, or so particular allegations may now be necessary, where allegations, according to the legal effect of the

305.

Cases.

Sufficiency of complaint.

It is enough if substantive facts are stated necessary to constitute a cause of action. Flye v. Hall, 224 Mass. 528, 113 N. E. 366.

Plaintiff must put his declaration in reasonably clear and precise form, since defendant is entitled to be clearly informed of general ground on which claim is based. McAvery v. Emergency Fleet Corp. (D. C. The Mass. 1926), 15 F. (2d) 405. court said: "The declaration does not make it clear whether the plaintiff's claim is for slander, for libel, or for something akin to malicious prosecution. These are quite different grounds of recovery. The declaration is, in my opinion, bad for indefiniteness and uncertainty. A defendant is entitled to be clearly informed of the general ground on which the claim against him is based, and it devolves upon the plaintiff to put his declaration in reasonably clear and precise form. If more than one ground is relied on, different counts should be inserted."