Jackson v. Lebar

By the Court : The Court erred in sustaining the defendant’s motion to strike out portions of the complaint. The matters stricken out con[259]stituted portions of the cause of action, and could have been reached only by special demurrer. It is only irrelevant or redundant matter which may be stricken from a pleading by virtue of the provisions of sec. 458, Code of Civil Procedure. An averment of the fact constituting the plaintiff’s cause of action cannot be said to he irrelevant or redundant to itself. Judgment reversed and cause remanded, with directions to overrule the motion to strike out portions of the complaint.

McKinstry, J., concurring: I concur in the judgment reversing the judgment below, on the ground that the jurisdiction of the District Court was determinable by reference to the ad damnum clauses of the original complaint.

I dissent from the views expressed in the prevailing opinion, and from the direction that the motion to strike out be denied. The portions of the complaint stricken out were irrelevant and redundant, because they added nothing to the legal effect of the other averments. They were, therefore, properly stricken out. A demurrer lies only to an entire count of a pleading, and cannot be resorted to as a means of disposing of a portion of a distinct count, when the rest thereof contains a statement of a cause of action.

Wallace, C. J., did not express an opinion.