Citation Numbers: 2 N.J. Misc. 1188
Filed Date: 7/25/1924
Status: Precedential
Modified Date: 7/25/2022
This is a motion to strike out a complaint upon the ground that it discloses nc cause of action. The complaint alleges
Under the heading “Third Defense” the defendant stated that on or before the trial of this action the defendant would move to strike out the complaint on the ground that it disclosed no cause for action.
The record does not show the date of the filing of the answer or disclose whether the action was placed on the cal endar for trial. After the filing of the answer notice of this motion was given.
In the ease of Applebaum v. Pierce (No. 402, February term, 1924), a similar motion, after answer filed, was made. In this case this court said: “Bule 30 of the Supreme Court rules reads as follows: 'Order of pleadings. The order of pleadings shall be — (1) complaint; (2) motion addressed to the complaint: (3) answer; (4) motion addressed to the answer; (5) reply. Further pleadings may be had, if necessary, until issue is joined. Unless otherwise ordered by the court, pleadings must be filed and motions made, in the order mentioned above.’
“We construe these sections as requiring a motion to strike out a complaint to be made to this court before an answer has been filed. After an answer has been filed the motion must be made at or after the trial before the judge to whom the cause has been referred for trial. The practice pursued in the present case, if sanctioned, could be made most, oppressive to plaintiff and a means of obtaining a delay in the trial of an action.- In many counties the Circuit calendars are so crowded that frequently all the canses listed for trial cannot be reached during the term. A defendant could, as the case was approached, give notice of a motion before the court to strike out the complaint. This would result in delay and deprive the plaintiff of a speedy trial of his case which our system of procedure seeks to give.”
These words are applicable to the present ease. Afielan swer filed this court will not entertain a motion to strike out the complaint. Often upon a motion made before the trial court defects in the complaint may be cured by amendments which the court will permit to be made where the complaint imperfectly states a good cause of action. This practice'of making a motion'of this kind, after answer filed to -the trial judge, leads to greater expedition in the trial cf causes.
Eor the reasons herein expressed the motion to -strike out-the complaint is denied, with costs.