Issues between plaintiff and defendant, or between plaintiffs, or defendants, too countless to enumerate might be raised. All of these issues, concededly, can be tried by the court in a foreclosure action where no personal judgment is demanded, because such issues were triable by the court from earliest times. The court can order the property to be sold. The officer who sells the property must report on the disposition of the proceeds. As was said in Carmichael v. Adams (91 Ind. 526, 527): "There could, in such a case as this — a suit upon a note and mortgage be no decree without an ascertainment of the amount due on the note, and, therefore, the whole matter was necessarily for the decision of the court. In order to determine whether the plaintiff was entitled to the relief sought, it was absolutely necessary to ascertain that there was a debt secured by the mortgage, for, if there was no debt, there was nothing upon which the power of the court could be exercised. It was not possible to make a step of progress in the decree without settling the defendant's indebtedness."

Conceding that all this can be accomplished without the intervention of a jury, what issue of fact remains to be tried? Nothing remains except an arithmetical calculation. Certainly no right of trial by jury exists as to this step.1 . . .

In Knickerbocker Life Ins. Co. v. Nelson (8 Hun, 21) the action was brought to foreclose four mortgages. The mortgagor and guarantor were joined, and both pleaded usury. Ruea Nelson, the defendant, had executed an instrument under seal, wherein he covenanted to pay upon demand any deficiency up to $20,000 that might arise on the sale or sales under foreclosure of said mortgages. He alleges that this instrument was obtained by fraud. The court held that the action was purely an equitable one, and that there was no right to trial by jury.

We find no case since the Revised Statutes of 1830 where a jury trial was had as matter of right in a foreclosure action.

The order of the Appellate Division and that of the Special Term should be reversed and the motion denied, with costs in all courts. The certified questions should be answered in the negative.

LOUGHRAN, J. (dissenting). In this action to foreclose a mortgage upon real property judgment for a deficiency is demanded against the respondents who guaranteed payment of the mortgage debt. They allege in their answer that the time for payment of the mortgage was extended and that its terms were otherwise varied without their consent. Whether they are entitled as of right to a trial by jury of the issues of fact so raised is the question upon which we differ.

1 A discussion of Carroll v. Deimel, 95 N. Y. 252 (1884), is omitted.

"The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever." (N. Y. Const. art. I, § 2.) These words have been part of the fundamental law of the State since the adoption of the Constitution of 1821.1

As guarantors of this mortgage debt, the respondents can suffer liability only for a deficiency that may result on the sale of the mortgaged premises. Prior to 1821, the trial by jury was used in an action against the guarantor of a mortgage debt to recover on his guaranty. The right to such a trial in that case was made fast by the foregoing constitutional mandate of that year. This mandate has never since been modified. The right thereby secured therefore remains inviolate, despite statutory changes meantime in the practice in foreclosure. (See Steck v. Colorado Fuel & Iron Co., 142 N. Y. 236, 247.)

Knickerbocker Life Ins. Co. v. Nelson (8 Hun, 21) appears to be a decision to the contrary. If so, I think we are constrained to disapprove that case.

I vote to affirm the orders and to answer in the affirmative the questions certified.

HUBBS, FINCH and RIPPEY, JJ., concur with CRANE, Ch. J.; LOUGHRAN, J., dissents in opinion in which LEHMAN and O'BRIEN, JJ., concur.

Orders reversed, etc.2

1 The major part of the dissenting opinion is omitted.

2 Compare 23 Corn. L. Q. 194 (1937) with 38 Col. L. Rev. 190 (1938).

CHAPTER XIX

ASPECTS OF MODERN CIVIL PROCEDURE

SECTION 1

PLEADING

WE have already considered the most important characteristics of pleading under modern codes of procedure, practice acts, and rules of court, both under unified systems of procedure and under simplified modes of pleading in jurisdictions which administer law and equity in different procedural forms. The dominant feature of modern pleading is the almost universal adoption of a system of fact pleading, as distinguished from the issue pleading of the common law and the system of notice pleading which has been proposed by persons interested in procedural reform and adopted in some courts handling small claims.1

The common-law declaration, as we have seen, was often formalized, as for instance in the case of the common counts in assumpsit, and did not always set forth the facts on which the plaintiff's right of recovery depended. The classical bill in equity, on the other hand, did plead facts in the stating part, but also contained in the charging part or elsewhere allegations of evidence to obtain discovery. The modern complaint resembles the common-law declaration in omitting allegations of evidential facts, but it is primarily derived from the stating part of the classical bill in equity. Moreover, the freedom of joinder of causes of action in equity has been carried over into the unified procedure, and has even been increased. For example, the Federal Rules of Civil Procedure allow complete freedom in this regard:

FEDERAL RULES OF CIVIL PROCEDURE (1938).

RULE 18 (a). Joinder of Claims. The plaintiff in his complaint or in a reply setting forth a counterclaim and the defendant in an answer setting forth a counterclaim may join either as independent or as

1 Cf. pp. 165-169, supra.

2 See Rule 8(a), p. 652, supra. See also Rule 8(e)(1), which provides as follows: "Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required."

alternate claims as many claims either legal or equitable or both as he may have against an opposing party.1

It is usually required that a complaint or other pleading be made up of numbered paragraphs and that different causes of action be separated.

FEDERAL RULES OF CIVIL PROCEDURE (1938).

RULE 10(b). Paragraphs; Separate Statements. All averments. of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.

The ad damnum clause of the common-law declaration and the prayer for relief of the classical bill in equity are coming to be replaced by a "demand for judgment" which serves the same general purpose, but there is less danger that the plaintiff will lose relief to which he is entitled on the facts alleged in his complaint because he has failed to ask for the appropriate relief. For example:

FEDERAL RULES OF CIVIL PROCEDURE (1938).

RULE 54(c). Demand for Judgment. . . . Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.3

But the rule still is that the complaint must state a cause of action and may be dismissed at any stage in the proceeding if it fails to do so. It is open to argument whether this procedure should be preserved; whether the defendant should not be required to object to the sufficiency of the complaint during the pleading stage of the

1 The remainder of Rule 18 (a) provides for joinder of cross-claims, thirdparty claims, and claims in cases involving multiple parties.

2 As to judgments by default, see the remainder of Rule 54(c), p. 475, n. 1, supra. Cf. p. 477, n. 1, supra.

3 It will be remembered that this goes beyond the common law, under which the declaration could be attacked by demurrer before trial, by motion in arrest of judgment after trial, or by writ of error after judgment, but could not be attacked at the trial itself.

case and be barred from doing so thereafter.1 Certainly the absence of a material allegation from the complaint ought not to result in the plaintiff's defeat when the missing allegation is proved at the trial.2

The answer under modern unified procedure is, like the complaint, the result of combining some of the characteristics of the corresponding pleadings at law and in equity. Like the common-law plea, it is relatively brief and states defenses rather than matters of evidence; like the equity answer so far as that pleading was not concerned with giving discovery, it is a statement of the facts constituting . defenses in an unformalized manner. We have already considered sufficiently its main features, including the questions of objections in point of law in the answer and the inclusion of counterclaims. We have also considered sufficiently the reply under unified procedure and modern methods of objecting to the sufficiency of pleadings, as well as present practice with regard to allowing amendments at various stages of an action.

There was an old rule at common-law that pleadings should be construed most strongly against the pleader. No such rule ever properly obtained in equity, and it has generally been abolished by the codes.5

NEW YORK CIVIL PRACTICE ACT (1921).

$275. Construction of pleadings. Pleadings must be liberally construed with a view to substantial justice between the parties.

1 See Eagleton, "Two Fundamentals for Federal Pleading Reform," 3 U. Chi. L. Rev. 376, 378-403 (1936).

2 See Note, 2 Mo. L. Rev. 357 (1937). Cf. pp. 446-449, supra. See also Rule 15(b) of the Federal Rules of Civil Procedure, p. 299, supra.

3 See United States v. Linn, 1 How. 104, 110-111 (U. S. 1843); Groff v. Ankenbrandt, 124 Ill. 51, 54 (1888). This rule is still followed in some states. See Ex parte Mobile L. & R. Co., 211 Ala. 525, 526 (1924); Mullican v. Meridian L. & Ry. Co., 121 Miss. 806, 821 (1920); Columbus Packing Co. v. State ex rel. Schlesinger, 100 Ohio St. 285, 289 (1919). Cf. Frye v. Omaha. & C. B. St. Ry. Co., 106 Neb. 333, 336 (1921). But on motion in arrest of judgment, the pleadings are construed liberally even under the common law rule, "giving the plaintiff the benefit of every implication that can be drawn therefrom in his favor". Baker v. Warner, 231 U. S. 588, 592 (1913).

4 See Birely's Ex'rs v. Staley, 5 Gill & J. 432, 451 (Md. 1833): "Rules of pleading in equity are not governed by the same technicality as to matters of form, that controls proceedings at law. Courts of equity look to substance, not form." See also Sprague v. Rhodes, 4 R. I. 301, 303 (1856). But there is authority for applying the common law rule in equity also. See Foss v. Harbottle, 2 Hare 461, 502 (Ch. 1843); Durham v. Edwards, 50 Fla. 495, 499 (1905); Bennett v. Rosborough, 155 Ga. 265, 272 (1922). Cf. Simpson v. Fogo, 1 J. & H. 18, 23 (Ch. 1860).

5 A number of code states have gone to the opposite extreme from the common law rule, and hold that “a complaint must be liberally construed in favor of the pleader" [Kuechler v. Volgmann, 180 Wis 238, 243 (1923)].