[Download] "Paramount Publix Corp. v. Boucher Et Al." by Supreme Court of Montana * eBook PDF Kindle ePub Free

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eBook details

• Title: Paramount Publix Corp. v. Boucher Et Al.
• Author : Supreme Court of Montana
• Release Date : January 24, 1933
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 66 KB

Description

Submitted January 6, 1933. Pleading and Practice ? Motions to Strike ? Amended Pleadings ? Default Judgments ? Premature Entry ? Appearances. Pleading and Practice ? Granting of Time Within Which to Plead to Complaint ? Motion to Strike Complaint not Pleading. 1. Where defendant is given time within which to plead to an amended complaint, a motion filed by him within such time to strike such complaint, held not a pleading in the sense that its filing exhausted his right under the leave granted. Same ? When Demurrer and Motion to Strike may be Used Interchangeably. 2. While a demurrer and a motion to strike a pleading has each its separate and distinct office and neither can perform that of the other, they may be used interchangeably when either would reach the alleged defect, as where the demurrer is based on a ground which justifies the motion, or where the motion is based upon a ground of demurrer. Same ? Amended Pleading Improperly Filed ? Motion to Strike Proper. 3. The only method of determining whether an amended pleading has been improperly filed, i.e., filed without leave of court when such leave is necessary under sections 9186 and 9187, Revised Codes 1921, is by motion to strike. Same ? Improper Filing of Pleading ? Motion to Strike ? Waiver. 4. Improper filing of a pleading is waived by interposition of a demurrer, and the filing of a demurrer at the time a motion to strike is filed constitutes an involuntary waiver of the irregularity sought to be reached by the motion. Same ? Granting of Time Within Which to Plead to Amended Complaint ? Motion to Strike Complaint not Pleading ? Premature Entry of Default. 5. Defendant was granted additional time within which to plead to an amended complaint; within that time he interposed a motion to strike such complaint; the motion was denied, and plaintiff at once and before expiration of the time allowed defendant within which to plead, caused the latter's default to be entered. Held, on appeal from an order setting aside the default, that the motion was not a demurrer and therefore not a pleading on defendant's part and that the default, prematurely entered, was properly vacated. Same ? Appearance by Motion Prevents Entry of Default. 6. Under section 9322, Revised Codes 1921, appearance by motion in an action on contract for the recovery of money, whether general or special, prevents entry of default prior to disposition of the motion. Same ? Amended Pleading ? Original Functus Officio. 7. On the filing of an amended complaint which the party has a right to file, the original becomes functus officio, but where he has no such right, its filing amounts to nothing and the striking thereof leaves the case in the same situation as it was before the attempted amendment. Default Judgments ? Premature Entry Renders Judgment Voidable ? Motion to Set Aside not Governed by Section 9187, Revised Codes 1921. 8. A default judgment entered prematurely is not void, but voidable, and therefore requires a motion to set it aside; such a motion, however, is one of right, not one of grace on the part of the trial court, and hence it is immaterial whether movant makes a showing sufficient to appeal to its discretion under section 9187, Revised Codes 1921, relative to the setting aside of a default judgment asked for on the ground of mistake or excusable neglect of movant.

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