 It Is an established rule of pleading that a complaint must proceed upon some definite theory, and on that theory the plaintiff must succeed, or not succeed at all. A complaint cannot be made elastic so as to take form with the varying- views of counsel.  The Theory of a Pleading ... - Page 523by Clarke Butler Whittier - 1908 - 540 pagesFull view - About this book
 | Indiana. Supreme Court, Horace E. Carter, Albert Gallatin Porter, Gordon Tanner, Benjamin Harrison, Michael Crawford Kerr, James Buckley Black, Augustus Newton Martin, Francis Marion Dice, John Worth Kern, John Lewis Griffiths, Sidney Romelee Moon, Charles Frederick Remy - Law reports, digests, etc - 1884 - 682 pages
...theory^ and on that theory, the plaintiff jnust succeed, of not^ succeed at all. A complaint can _not be made elastic so as to take form with the varying views of counsel. Johnston v. Griest, 85 Ind. 503 ; Platter v. City of Seymour, 86 Ind. 323 ; Johnston, etc.,... | |
 | Law reports, digests, etc - 1908 - 1168 pages
...act is unconstitutional as applied to appellant In Mescall v. Tully, 91 Ind. 90, 99, this court said: "It is an established rule of pleading that a complaint...proceed upon some definite theory, and on that theory tne plaintiff must succeed, or not succeed at all. A complaint cannot be made elastic so as to take... | |
 | Byron Kosciusko Elliott, William Frederick Elliott - Advocates and advocacy - 1894 - 918 pages
...unsound, although upon a sound theory he would have succeeded. The general rule has been thus stated: "It is an established rule of pleading that a complaint must proceed on some definite theory, and on that theory the plaintiff must succeed or not succeed at all. A complaint... | |
 | Law - 1908 - 554 pages
...established rule of pleading that a complaint must proceed upon some definite theory, and on that theory must succeed or not succeed at all. A complaint cannot...elastic so as to take form with the varying views of counsel. * * * The rule that' a complaint must proceed upon some theory, and must be good upon the... | |
 | Roscoe Pound - Jurisprudence - 1908 - 126 pages
...Okl. 665In Mescall v. fully, the Court says : "It is an established rule of pleading that a plaintiff must proceed upon some definite theory, and on that...the plaintiff must succeed or not succeed at all, * * * The theory upon which the complaint is constructed is that the parol agreement transformed the... | |
 | Electronic journals - 1911 - 728 pages
...PROC., ยงยง 481, 3339. have evolved a doctrine of the "theory of the pleading" best stated as follows: "It is an established rule of pleading that a complaint...elastic so as to take form with the varying views of counsel." 7 The application of this rule prevents not only a change from a legal to an equitable theory... | |
 | Byrin K. Elliott - 1911 - 668 pages
...unsound, although upon a sound theory he would have succeeded. The general rule has been thus stated: "It is an established rule of pleading that a complaint...or not succeed at all. A complaint cannot be made so elastic as to take form with the varying views of counsel."5 A theory of the law of the case radically... | |
 | Byron Kosciusko Elliott, William Frederick Elliott - Lawyers - 1911 - 632 pages
...unsound, although ui>on a sound theory he would have succeeded. The general rule has been thus stated*: "It is an established rule of pleading that a complaint...or not succeed at all. A complaint cannot be made so elastic as to take form with the varying views of counsel." 3 A theory of the law of the case radically... | |
 | Law reports, digests, etc - 1914 - 1308 pages
...103 NE 349; Gallegos v. Sandoval, 15 NM 216, 100 l'ae. 373; and other cases cited in tins footnote. It is an established rule of pleading that a complaint...proceed upon some definite theory, and on that theory plaintilT must succeed or not succeed at all. A complaint cannot be made elastic so ns to take form... | |
 | Electronic journals - 1922 - 578 pages
...(1908) 169 Ind. 639, 83 NE (Ind.) 246. 18 Acts of Indiana, 1893, ch. 130, p. 234. 19 The court said : "It is an established rule of pleading that a complaint...proceed upon some definite theory and on that theory plaintiff must succeed or not succeed at all. As the theory adopted in the trial court was that this... | |
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