“Pleadings”- & Related Definitions

Note: All definitions below are from Black’s Law Dictionary Deluxe Tenth Edition[1] unless otherwise indicated.  Legal terms located within other legal term definitions are highlighted in pink & then defined further down the page in the order they appear.

Definition of PLEADING:

1. A formal document in which a party to a legal proceeding (esp. a civil lawsuit) sets forth or responds to allegations, claims, denials, or defenses. In federal civil procedure, the main pleadings are the plaintiff‘s complaint & the defendant‘s answer.”

    The following excerpt from Common Law Pleading & Practice by Sabin D. Puterbaugh provides historic & legal insight into Common Law procedure in regards to Pleadings:

   The [common-law] pleadings in a cause are commenced, on the part of the plaintiff, with the declaration, which is a statement in writing of his cause of action, in legal form. This declaration, as every other pleading in the cause, is required to be framed agreeable to the established rules & forms of pleading, & if defective in any particular either in substance or form, may be objected to, as insufficient in law, by demurrer, on the part of defendant; or he may allege some matter in abatement of the action, or he may deny the declaration to be true in point of fact, or may set up matter in avoidance of it such answer on the part of the defendant being technically denominated his plea.

     To the defense thus made, the plaintiff may again, in his turn, reply, either, in case of a demurrer, by reasserting his declaration to be sufficient in law to support this action, & referring that question to the judgment of the court, which is termed a joinder in demurrer; or, in the case of a special plea, he may on his part demur to such plea, as insufficient in law to constitute a defense; or he may deny it to be true in point of fact, or allege some new matter in avoidance of it, according to the circumstances such answer being styled a replication.

     To the replication the defendant may either demur upon the law, or oppose a rejoinder as to the fact; & to the rejoinder the plaintiff may demur, or oppose a surrejoinder; & so the parties may proceed, by a system of alternate allegation & objection, denial or evasion, technically termed the pleadings, until they arrive at an issue, that is, some specific point of law, or fact, affirmed on one side & denied on the other, & presenting the exact question for the court or jury to determine. [2]

    The Plaintiff‘s initial pleading is usually a Complaint, but a Petition could be filed instead (Fed. Rules. Civ. Proc. Rule 3).

Definition of COMPLAINT:

1. The initial pleading that starts a civil action & states the basis for the court’s jurisdiction, the basis for the plaintiff’s claim, & the demand for relief.  In some states (cases), this pleading is called a petition.”

Definition of PETITION:

n. (15c.) 1. A formal written request presented to a court or other official body.  2. In some states (cases), the first pleading in a lawsuit — petition, vb.  Learn more.

    The Defendant‘s initial pleading which responds to the Complaint is called an answer.

Definition of ANSWER:

n. (bef. 12c.) 1. A defendant’s first pleading that addresses the merits of the case, usually by denying the plaintiff’s allegations.  An answer usually sets forth the defendant’s defenses & counterclaims.”

Definition of REPLICATION:

“A plaintiff’s or complainant’s reply to a defendant’s plea or answer; REPLY”

   The following excerpt from Joseph Chitty’s A Treatise on the Parties to Actions, the Forms of Actions, & on Pleading provides historic & legal insight into Replication:

    “As the replication is in general governed by the plea, & most frequently denies it, the pleader has not often much difficulty in deciding what replication he should adopt. When the plea properly concludes to the country, the plaintiff cannot in general reply otherwise than by adding what is termed the similiter; but when the plea concludes with a verification, & the plaintiff does not demur, the replication may either, first, conclude the defendant by matter of estoppel; or, secondly, may traverse or deny the truth of the matter alleged in the plea either in whole or in part; or, thirdly, may confess & avoid the plea; in which case… the truth of the matter alleged in the plea must be admitted; or fourthly, in the case of an evasive plea, may new assign the cause of action, And though at common law a replication cannot be double, or contain two or more answers to the same plea, & the Statute does not extend answers to the same plea, & the Statute does not extend to replications, (except in the instance of a plea in bar to an avowry in replevin, which is the nature of a replication) yet the plaintiff in many cases has an election of difference replications.” [3]

Definition of JOINDER:

n. (17c) The uniting of parties or claims in a single lawsuit. Cf. CONSOLIDATION (3) – join, vb.

Definition of JOINDER IN DEMURRER:

(17c) Common-law pleading. A set form of words by which either party accepts or joins in a legal issue; especially, the plaintiff’s acceptance of the defendant’s issue of law. See PLEADING (quot.)

Definition of DEMURRER:

[French demorer ‘to wait or stay’] A pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the plaintiff to state a claim for relief & for the defendant to frame an answer. In most jurisdictions, such a pleading is now termed a motion to dismiss, but demurrer is still used in a few states, including California, Nebraska, & Pennsylvania.”

    The following excerpt from Edwin E. Bryant’s The Law of Pleading Under the Codes of Civil Procedure provides historic & legal insight into Demurrer:

     “The word ‘demurrer’… imports that the party demurring waits or stays in his proceedings in the action until the judgment of the court is given whether he is bound to answer to so insufficient a pleading. Each party may demur to what he deems an insufficient pleading of the other. The demurrer was general when it was to matter of substance; it was special when it was made to matter of form, & must specifically pint out the defect. [4]

Definition of TRAVERSE:

n. Common-law pleading. A formal denial of a factual allegation made in the opposing party’s pleading <Smith filed a traverse to Allen’s complaint, asserting that he did not knowingly provide false information>. See DENIAL. — traverse, vb.

     The following excerpt from Joseph Chitty’s A Practical Treatise on the Criminal provides historic & legal insight into Traverse:

     “It is said that the technical term traverse, from transverto, to turn over, is applied to an issue taken upon an indictment for a misdemeanor, & means nothing more than turning over or putting off the trial to a following session or assize; & that thus it is that the officer of the court asks the party whether he is ready to try then, or will traverse to the next session; though some have referred its meaning originally to the denying or taking issue upon an indictment, without reference to the delay of trial, & which seems more correct.” [5]

    The following excerpt from Franklin Fiske Heard’s The Principles of Pleading in Civil Actions provides historic & legal insight into Traverse:

     Of traverses there are various kinds. The most ordinary kind is that which may be called a common traverse. This consists of a tender of issue; that is, of a denial, accompanied by a formal offer of the point denied, for decision; & the denial that it makes is by way of express contradiction, in terms of the allegation traversed. [6]

Definition of PLEA IN BAR:

“A plea that seeks to defeat the plaintiff’s plea of not guilty by which the defendant denies every fact & circumstance necessary to be convicted of the crime charged.”

Definition of SIMILITER:

[Latin ‘similarly’] Common-law pleading. A party’s written acceptance of an opponent’s issue or argument; a set form of words by which a party accepts or joins in an issue of fact tendered by the other side. See joinder of issue.

Definition of REJOINDER:

1. Common-law pleading. The defendant’s answer to the plaintiff’s reply (or replication).  2. Any answer to a reply.  3. A retort; a sharp or rude reply.

     The following excerpt from John Harris’s Lexicon Technicum: Or, an Universal English Dictionary of Arts & Sciences provides historic & legal insight into Rejoinder:

     “An Answer or Exception to a Replication; for first the Defendant puts in an Answer to the Plaintiff’s Bill, which is something called, An Exception, the Plaintiff’s Answer to that is called a Rejoinder, especially in Chancery (“contracts”, generally). Tis by the Civilians called Duplication. [7]

Definition of SURREJOINDER:

Common-law pleading. The plaintiff’s answer to the defendant’s rejoinder. surrejoin vb.

     The following excerpt from the case ruling, 61Am. Jur. 2d Pleading § 193, provides historic & legal insight into Surrejoinder:

     “Where the common-law system of pleading is in force, the pleadings do not terminate with the plaintiff’s replication. The defendant may interpose a rejoinder to the replication, & the plaintiff a surrejoinder to the defendant’s rejoinder. Then follows the rebutter, which in turn may be met by a surrebutter. [8]

Definition of REBUTTER:

1. Common-law pleading. The defendant’s answer to a plaintiff’s surrejoinder; the pleading that followed the rejoinder & surrejoinder, & that might be in turn be answered by the surrebutter. 2. Someone who rebuts.

Definition of SURREBUTTER:

Common law pleadings. The plaintiff’s answer of fact to the defendant’s rebutter.

Definition of ESTOPPEL:

1. A bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true. 2. A bar that prevents the relitigation of issues. 3. An affirmative defense alleging good-faith reliance on a misleading representation & an injury or detrimental change in position resulting from that reliance. Cf. WAIVER (2) — estop, vb.

References:

[1] All definitions from: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

[2] Sabin D. Puterbaugh, Puteraugh’s Common Law Pleading & Practice 36-37 (3rd ed. 1873) ISBN13: 9781240177844

[3] Joseph Chitty, A Treatise on the Parties to Actions, the Forms of Actions, & on Pleading 610 (John A. Dunlap & E.D. Ingraham eds., 6th annotated ed. fr. 5th London ed. 1833) ISBN13: 9781240051106

[4] Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 179 (2nd ed. 1899) ISBN13: 9781149968253

[5] Joseph Chitty, A Practical Treatise on the Criminal Law 486 (2nd Ed. 1826) ISBN 1345836554

[6] Franklin Fiske Heard, The Principles of Pleading in Civil Actions 118 (1880) ISBN 0259775819

[7] John Harris, Lexicon Technicum: Or, an Universal English Dictionary of Arts & Sciences (1704) (s.v. rejoynder) ISBN 1584774185

[8] 61Am. Jur. 2d Pleading § 193, at 192 (1981)

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