The Wisconsin courts seem to take a quite liberal view of this provision. Thus it is said in Bryant that, contrary to the rule of the common law a complaint, when its sufficiency as stating a cause of action is challenged, is to be liberally construed. with all reasonable inferences and intendments in favor of the plaintiff. If it is ambiguous, and no motion is interposed to have it made more definite and certain, the court may properly read out of the language used any theory which can reasonably be found within its terms and which would entitle the plaintiff to judicial relief. Furthermore, 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 inten tion will be given effect if possible. Bryant's Wis. Pl. & Pr. § 267. See further the material under "Source Authorities," post. 1153. Fee: "Substantial justice" considered. Speaking of first-draft Rule 12 (a), which provided that "all pleadings shall be liberally construed for the purpose of effectuating substantial justice between the parties," Judge James Alger Fee said: "The first six words of this rule cannot be justly criticized. The adoption of the final phrase, however, seems to carry out the main idea that there should be no definite issues or theory of pleading, but that all the testimony shall come in uncontrolled. 'Substantial justice' can have no relation to the pleadings. It is conceded this phrase appears in several of the codes, but the construction has been various. It has been interpreted in some states in accordance with the accepted principles of pleading and trial practice; but in other states the phrase has been given a meaning in accordance with the apparent ideas and purposes of the members of the committee. The danger of this phrase was appreciated by the Code Commission of Illinois, which for clarity added the words: 'but this section shall not be deemed to affect in any way the substantial averments of fact necessary to state any cause of action either at law or in equity.' The wording of Equity Rule 19, which has been in effect for many years, would have effectuated any proper purpose." 16 Ore. L. R. 103, 109. While the subdivision in its present form has been changed, Judge Fee's comment nevertheless remains pertinent. 1154. Construing words in popular sense. Apart from other considerations it has long been the rule that words in a pleading are ordinarily to be construed in their popular sense (Backus v. Richardson, 5 Johns. (N. Y.) 476; Woodbury v. Sackrider, 2 Abb. Pr. (N. Y.) 402; Mann v. Morewood, 5 Sandf. (N. Y.) 557; Walton v. Singleton, 7 Serg. & R. (Pa.) 449), and fairly (Jones County Trust & Savings Bank v. Kurt, 192 Iowa 965, 182 N. W. 409). See also Dolan v. Keppel, 189 Iowa 1120, 179 N. W. 515. And at common law, as well as under the codes, the usual rule has been that pleadings are to be construed by taking their allegations as a whole, and not in the light of a detached sentence or paragraph alone. Hurt v. Southern Ry. Co., 205 Ala. 179, 87 So. 533. See also the quotation from Swift v. United States in "Construction under former federal practice," note 1146, ante. 1170. 1171. Reasonable intendment. Code pleadings are liberally construed, and every reasonable intendment is indulged in behalf of the pleader. Geyer v. Western Union Tel. Co., 192 Ark. 578, 93 S. W. (2d) 660. In determining the sufficiency of any pleading, every fair and reasonable intendment must be indulged in to support such pleading. Funk v. Young, 138 Ark. 38, 210 S. W. 143. On general demurrer all reasonable intendments are in favor of the pleading. Ellis v. First Nat. Bank of Fordyce, 163 Ark. 471, 260 S. W. 714; Arkansas Bond Co. v. Harton. 191 Ark. 665, 87 S. W. (2d) 52. Under the code, every reasonable intendment and presumption must be made in favor of pleading, and if facts stated in complaint, with every reasonable inference therefrom, constitute cause of action, demurrer to it should be overruled. Harnwell v. Arkansas Rice Growers' General allegation is controlled by averments of specific one only when latter necessitates inference by reasonable person that is not consistent with general allegation. Brooks v. Neer, 46 Ariz. 144, 47 P. (2d) 452. A general allegation is controlled Co-op. Ass'n, 169 Ark. 622, 276 S. W. by a specific one only where the latter calls for inference that it is inconsistent with the general. Brooks v. Neer, 46 Ariz. 144, 47 P. (2d) 452. 371. Demurrer to complaint should be overruled where facts stated, together with every reasonable inference arising therefrom, constitute cause of action. Arkansas Bond Co. v. Harton, 191 Ark. 665, 87 S. W. (2d) 52. It has been often said that pleadings are to be construed most strongly against the pleader; but the true and accurate statement of the rule binding upon the courts, is that set forth in section 452 of the Code of Civil Procedure, that "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." Estate of Wickersham, 153 Cal. 603, 96 Pac. 311. Since the enactment of section 452 of the Code of Civil Procedure in 1872 it has been generally recognized that in the construction of a pleading for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. Mix v. Yoakum, 200 Cal. 681, 254 Pac. 557. Pleadings will be liberally construed, and to deny a party his right to a trial, there must be an obvious failure of the pleadings to state a If it be assumed that there is a presumption against the pleader when the pleading is silent as to an essential averment, such presumption would not go to the length of requiring allegations in anticipation of matters of defense or to negative the existence of defensive matters. Mix v. Yoakum, 200 Cal. 681, 254 Pac. 557. If pleadings allege facts which might constitute two or more causes of action, a liberal construction directed by the code may lead to discarding those defectively averred as surplusage. Blodgett v. Darby, 201 Cal. 639, 258 Pac. 373. Liberal construction provided for does not mean that court shall supply a pleading bodily, or any substantial averment omitted, or overlook or disregard such omission. Gale v. James, 11 Colo. 540, 19 Pac. 446. Indefinite or qualified pleading should be construed most strongly against pleader. Wiltshire v. Modern Woodmen, 76 Colo. 460, 232 Pac. 925. tions. 1195. Idaho. 1 Idaho Code Ann. (1932) 5-801 is the same in substance as Crawford & Moses Ark. Dig. (1921) 1224. 1196. Contradictory allega- 1197. If allegations in a pleading are contradictory, those must be асcepted which are against the pleader's interest. Anderson v. Kurtz. 66 Colo. 215, 182 Pac. 533. -- Cases. Purpose. The purpose and object of our code of procedure is to have actions tried upon their merits and not to have them dismissed on mere technicalities. Nobach V. Scott, 20 Idaho 558, 119 Pac. 295. |