172 P.2d 446 | Colo. | 1946
The complaint in this cause contains all the usual allegations for divorce, including residence, marriage, cruelty and desertion. The prayer is for limited divorce *282 (judicial separation), equitable division of property, and "such other and further relief as may be proper." The trial court sustained a motion to dismiss for failure to state a claim upon which relief can be granted.
In the terms of the former code we have a statement of the facts constituting a cause of action in ordinary and concise language and a demand for the relief which plaintiff claims. In the terms of the new rules of civil procedure, we have a plain statement of claim showing that the pleader is entitled to relief and a demand for judgment for the relief to which he deems himself entitled. Assuming that the specific relief prayed for cannot be granted under our Colorado statutes, we have here presented the question whether the complaint shall be judged by its allegations or by its prayer; by its statement of claim and facts showing plainly that plaintiff is entitled to relief, or by its request for a relief to which he is not entitled. If the complaint is to be judged by the latter, the motion to dismiss was properly sustained; if it is to be judged by the former, the motion to dismiss should have been denied.
Under the old procedure, the motion to dismiss for failure to state a claim would have been by general demurrer for failure to state facts sufficient to constitute a cause of action. As to such demurrer we said inStratton v. Beaver Farmers' Canal and Ditch Co.,
And again in McCreery v. Miller's Groceteria Co.,
"In order to determine whether or not the action of the trial court in sustaining the demurrers was right, we must analyze the complaint to see whether its allegations state a cause of action — not a cause of action in tort alone, but any cause of action. If the allegations are true, do they justify a recovery on any theory? If they do, it was error to sustain the demurrers."
See, also, Snell v. Public Utilities Com.,
In defendant's brief are cited several decisions of this court where complaints apparently setting out facts sufficient for relief were held demurrable because the actions sought special writs. It was because of such result that our Rule 106 was adopted abolishing forms of writs and special forms of pleadings formerly required. Here, *284 no such form of writ is involved, even under the old code.
[1-3] Our new rules of civil procedure, adopted almost in their entirety from the new federal rules, are intended to simplify pleadings and to eliminate delay. We have not had occasion to construe Rules 8 (a) and 54 (c), but they have been repeatedly applied by the federal courts.
In Securities Exchange Com. v. Timetrust, Inc.,
In Hunkin-Conkey Const. Co. v. Pennsylvania TurnpikeCom. (M.D. Pa., 1940),
In Keiser v. Walsh,
In Gay v. E.H. Moore, Inc.,
In Kansas City, St. L. C. R. Co. v. Alton R. Co.,
"`The question is not whether the Plaintiff has asked for the proper remedy but whether under his pleadings he is entitled to any remedy.' Catanzaritti v. Bianco, D.C.,
"If the appellant has stated a cause of action for any relief, it is immaterial what he designates it or what he has asked for in his prayer; the court will grant him the relief to which he is entitled under the facts pleaded." The case was reversed, with instructions to overrule the motion to dismiss.
Patently the complaint is sufficient to withstand either a demurrer under the code or a motion to dismiss under the new rules.
But it is urged that the plaintiff does not seek a *286 divorce to which his complaint would properly entitle him, but only improper relief. Had plaintiff anywhere declared his intent to seek limited divorce only, and to refuse other relief, the legality or propriety of such relief might properly have been determined on the motion to dismiss, and should he so declare on remand, it may still be determined on such motion. But nowhere, either in the complaint or elsewhere in the record, is there a suggestion that plaintiff will not accept or does not desire the relief to which he may be legally entitled. The prayer of the complaint is not so restricted, but includes request for division of property and for such other and further relief as may be proper. And to put plaintiff's purpose beyond conjecture, plaintiff now asks, if we be of opinion that it is necessary to sustain his complaint, that the trial court be instructed to permit amendment of his complaint to ask among other things for an absolute divorce. In such a situation, to dismiss plaintiff's complaint, to throw him out of court and make him start his action all over again with the identical complaint, except for the three offensive words of his prayer, savors of ritual worship rather than of justice and squanders the time of litigants and counsel and the officers of the court. No injustice can be done, by permitting the complaint to stand; nothing but delay can result from dismissal. Rules of procedure should serve to facilitate, not to impede, the decision of cases on their merits.
The judgment of the court below is reversed with instruction to overrule the motion to dismiss.
MR. JUSTICE HILLIARD did not participate.
MR. JUSTICE BURKE and MR. JUSTICE BAKKE dissent. *287