People ex rel. Bartlett v. Dunne

2 Ill. Cir. Ct. 235

• Court: Illinois Circuit Court
• Decided: January 30, 1907
• Docket: Gen. No. 258, 128, Term No. 16, 128
• Status: Published

Opinion

Chytraus, J.

(orally): — •

I am of the opinion now, as I have been all along, the proper practice is in. any state where the common law prevails, to reach matter that is immaterial or improper, is by motion to strike out. It is, in my judgment, 'the best and most orderly way by which to reduce pleadings to a single issue, or reduce questions to a single issue.

This case of the Chicago & Eastern Illinois Railroad Company v. O’Connor, 119 Ill. 586, while to an extent it sustains the contention of the petitioner here, yet I don’t think it is an authority in point. It appears that the supreme court there made a remark as to what the proper practice was, without reference to any -authority at all, and then the remark was very much modified by the language that follows, where the court says that there was no prejudice by the procedure followed. These other cases cited by Mr. Mayer, I think, are about of the same kind. I do not think in any one of them, so far as I have observed, the question was squarely before the court, that is, the particular proposition was not the one upon which the decision hinged. So I do not think that the old common-law practice has been changed or altered in respect to a motion to strike being the proper way in which to reach improper, irrelevant or impertinent matter, and the court holds accordingly, that is, the motion will be entertained. As to the merits of the motion in this particular case, I believe, and you gentlemen both agree, it will take some time to argue it, and you both want to be heard at length.

On the merits of respondents’ motions to strike the following opinion was rendered January 30, 1907.

(orally):—

I believe in the strict enforcement of the rules of pleading, as I believe in the strict enforcement of the laws of our state. The courts have nothing to do with the policy or with the wisdom of the laws; and, I doubt if the court has anything to do with the rules of pleading. The rules of pleading that require him to strike from the record irrelevant, argumentative and repugnant matter, I think are good rules of pleading. If any one of these averments were necessary to enable this petitioner to introduce any evidence or any line of evidence competent in a case of this character, then as to such averment the motion to strike out should be overruled; but I fail to notice that any one of these averments that are objected to would enable the petitioners to introduce any evideuce that could not be introduced in the case without it; so I feel obliged here to sustain the motion to strike out.

I feel that' this is a ease of great importance, and may involve fundamental propositions and constitutional matters, and I do not want you gentlemen on either side to believe for a moment that I regard the matter lightly, because I do not. This point has been very ably argued by competent counsel ,on both sides and I am disposing of it in this way because I think that is the way .to dispose of matters; but, because I dispose of it immediately, I do not want you to think that I regard any of these matters trivial.

NOTE.

A motion to strike out is the proper method of ridding a pleading of impertinent, immaterial or irrelevant matter or that which is surplusage. Siever v. People, 45 Ill. 224, 227; Burnap v. Wight, 14 Ill. 301, 303; Stover Mfg. Co. v. Millane, 89 Ill. App. 532, 537; Consolidated Coal Co. v. Peers, 166 Ill. 361; 14 Ency. Pl. & Pr. 79 and note p. 80; 21 Ency. Pl. & Pr. 221. But see C. & E. I. R. R. Co. v. O’Connor, 119 Ill. 586. — Ed.