150 P. 711 | Okla. | 1915
This action reminds us of "Much Ado About Nothing." It arose over a cow of the alleged value of $40. The plaintiff sued the defendant John Doyle, a constable, and his bondsmen, for damages *756 for his alleged failure to deliver said cow to plaintiff, he having taken possession of same in a prior replevin action.
Plaintiff's petition contains several paragraphs and they are numbered from 1 to 9, inclusive. The defendants demurred, alleging that the petition does not state facts sufficient to constitute a cause of action. The court sustained the demurrer upon the grounds, as set out in the journal entry, "that none of the counts set out in said petition state a cause of action." It seems that the court held each of the numbered paragraphs of the petition to be separate and distinct counts. It is manifest that the court erred in so holding. It is apparent from a casual inspection of the petition that it is a single cause of action, or count, and that the pleader has paragraphed the same and numbered each paragraph. While the statute prescribes that, where the petition contains more than one cause of action, each shall be separately stated and numbered, yet, where the petition contains only one cause of action, we know of no law which declares that the pleader may not number the paragraphs in the petition, or in the different counts, if the petition contains more than a single count. In the absence of a statute which prevents, we not only can see no reason why the pleader may not number the paragraphs, but it becomes a matter of convenience to do so, as it enables the other party to demur to any part of the petition by reference to the number of the particular paragraph, or any part of the petition can be more readily referred to by having it so numbered. As far as our observation goes, it is almost a universal custom to so number the different paragraphs, and, while our procedure does not require it, yet it is certainly permissible, and it is error to sustain a demurrer *757 to a petition for the reason that the different paragraphs are so numbered.
For the reason given, the judgment of the lower court should be reversed and remanded.
By the Court: It is so ordered.