ON REHEARING.
SULLIVAN, C. J.— A rehearing was granted in this case, and orally reargued to this court by respective counsel, and substantially the same as at the original hearing. The pleadings in the case are quite fully set out in the opinion on the original hearing, and it is not necessary to repeat them here. *804The leading case cited by counsel for appellant is Hibernia Ins. Co. v. St. Louis etc. Co. (C. C.), 13 Fed. 516. That case is clearly distinguishable from the case at bar. That was a suit in equity or plaintiff then sought equitable relief, and it was alleged in the complaint or bill that the sale and transfer of the property of the old corporation to the new one was fraudulent, as against the rights of the complainants, and that the new corporation was not a bona fide purchaser of said property, while in the ease at bar the complaint alleges, in substance, that under and by virtue of the laws of Connecticut the defendant corporation (which was a Connecticut corporation), was authorized to consolidate with other companies engaging in like business, and that by virtue of and under the authority of said laws the defendant corporation did consolidate with said Twin Springs Placer Company; that it became the owner of all of the property of the latter corporation, and assumed all of the debts and liabilities due or outstanding against the Twin Springs corporation, and the only relief prayed for is judgment for the amount of the check sued on and costs of suit. It is a complaint seeking by legal remedy to recover on said check. It contains no allegation that tends to charge'fraud in any of the transactions between said corporations, and all of the allegations show that such transactions were fair and honorable. It is alleged that said respondent corporation assumed and agreed to pay the check sued on herein, which allegation was put in issue by the answer. The appellant failed to prove that allegation. While the evidence shows that respondent did assume to pay many of the debts and liabilities of the Twin Springs corporation, it failed to prove that respondent assumed and agreed to pay the cheek sued on herein.
But it is contended that it was a fraud on appellant for said respondent corporation to take over all of the property of the Twin Springs corporation without providing for the payments of its debts. Conceding that to be true, in order to hold respondent the complaint must contain the proper allegations. It must contain a statement of the facts constituting the cause of action in ordinary and concise language. It is too well *805established to require citation of authorities that, in order to establish fraud, it must be alleged and proved. In this case the allegations of the complaint show that the plaintiff considered that he had a legal right to recover the payment of said cheek from the respondent, and he sought to enforce it by legal remedy. But when it came to the evidence, appellant failed to prove that respondent assumed and agreed to pay said check. And now it is contended that the purchase of all the property of the Twin Springs Company by the respondent without providing for the payment of its debts was a fraud upon appellant, and on that ground respondent is liable. Conceding that to be true, as there is no fraud alleged in the complaint, and no issue made upon that point, the court was not authorized to give judgment on the ground of fraud.
It is contended that under our constitutions and statutes, all distinctions are prohibited between actions at law and suits in equity, and that the court was authorized to give judgment according to the justice of the case. We shall proceed to consider the section of our state constitution and statute bearing upon this contention.
Section 1, article 5, of the constitution, is as follows: “The distinctions between actions at law and suits in equity, and the forms of all such actions and suits are hereby prohibited; and there shall be in this state but one form of action for the enforcement or protection of private rights, or the redress of private wrongs, which shall be denominated a civil action; and every action prosecuted by the people of the state as a party, against a person charged with a public offense, for the punishment of the same, shall be termed a criminal action. Feigned issues are prohibited, and the fact at issue shall be tried by order of court before a jury.” Section 4020 of the Revised Statutes of 1887, is as follows: “There is in this territory but one form of civil actions for the enforcement or protection of private rights and the redress or prevention of private wrongs; provided, that in all matters not regulated by this code, in which there is any conflict or variance between the rules of equity jurisprudence and the rules of the common law, with reference to the same matter, the rules of equity shall prevail.” *806Said section of the constitution provides that there shall be but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which action is denominated a “civil action.” It also prohibits the distinction between actions at law and suits in equity and the forms of all such actions and suits. Section 4020 of the Revised Statutes of 1887 provides that there is but one form of civil actions for the enforcement of private rights and the redress or prevention of private wrongs. This state, in its territorial days, by the enactment of said section 4020, adopted what is known as the “reformed procedure,” and thus attempted to and did do away with many of the technicalities and forms of common-law pleadings, following New York and other states in that regard. Substantially, the provisions of the section of the constitution above quoted were adopted by the legislature of New York in the adoption of the Code of Procedure of that state in 1848, the adoption of which was a shock to the opinions and prejudices of many lawyers, as well as judges, who had been accustomed to regard the common-law system of pleading as perfect. Mr. Pomeroy, in his work on Remedies and. Remedial Rights, section 65 et seq., states how this innovation was received and' interpreted by courts and judges, and cites many decisions bearing thereon, and concludes that the new system has not produced, and was not intended to produce, any alteration or effect upon the primary rights, duties, and liabilities of persons created by either department of the municipal law. Referring to the statutory provisions abolishing all distinction between aotion at law and suits in equity, in section 67 that author says: “The principles by which the courts determine the primary rights and duties of litigant parties remain unaltered. Upon the acts or omissions which were the occasion of a right called ‘equitable’ the same right is still based, and is still properly termed ‘equitable.’ From the acts or omissions which were the occasions of a right called ‘legal,’ the same right still arises, and is still with propriety termed ‘legal.’” It is also stated that much of the confusion and uncertainty which now exists would disappear if the bench and bar should speak of legal and equitable rights, *807legal and equitable remedies, but not of legal and equitable actions; and says: “To term an action ‘legal’ or ‘equitable’ is a misnomer, and one which involves a wrong conception and a false doctrine; since the statute has removed all distinction between legal and equitable actions, and has substituted in place of both a single civil action,” etc. And: “But, as the legislature did not say, nor mean to say, that the distinctions between legal and equitable rights or remedies are abolished, those terms may be used with propriety and correctness.” And again: “Abolition of the distinction between legal and equitable actions and the forms of legal actions does not abolish the distinction between remedies.” And again: “If the ease which he [referring to the plaintiff in an action] states shows hin^ entitled to any relief, either legal or equitable, his complaint is not to be dismissed because he has prayed for a judgment that is not embraced by the facts.” Of course, the prayer of a complaint is not controlling. If the facts stated in the complaint are established by the evidence, and show that the plaintiff is entitled to any relief, the court may grant him such relief, although not prayed for; but in the case at bar the facts alleged in the complaint do not show that plaintiff is entitled to equitable relief, and the evidence fails to establish the issues made by the pleadings. The complaint is drawn upon the theory that the remedy is legal, and not equitable; but when it came to the evidence that indicated that the plaintiff’s remedy was equitable, appellant might have then and there amended his complaint, and shown by proper allegations that his remedy was equitable. But he did not do so, and the court was not authorized to consider such amendment made when in fact it had not been made. The case went to judgment on the issues made by the pleadings, which clearly show that plaintiff considered that his remedy was legal, and not equitable. Mr. Pomeroy, in his work above cited, at section 71, sums the matter up as follows: “Thus it may be regarded as a settled rule, resulting from the statutory provisions in'question, that, if a plaintiff has set forth facts constituting a cause of action, and entitling him to some relief, either legal or equitable, his *808action should not he dismissed because he has misconceived the nature of his remedial right, and has asked for .a legal remedy when it should have been equitable, or for equitable remedy when it should have been legal.” Now, in the case at bar appellant asked for a legal remedy, and it must be conceded that hé failed to establish facts entitling him to that remedy, and that he did not allege facts that would entitle him to an equitable remedy. In other words, he did not allege facts constituting a cause of action for equitable relief.
Finally, it is urged that appellant is entitled to some relief, and this court is asked to modify its decision so that it will not be. a bar to another action to recover on said check. The court, in its former decision, did not intend to deprive the appellant of any right he might have left for recovery on said check; and, if he has an equitable remedy after being defeated in a suit for a legal one, this court has not deprived him of that right. In Pratt v. Ratliff, 10 Okla. 168, 61 Pac. 523, it was held that a judgment i§ a bar to another action if the cause of action be the same, though the form be different, and that the cause is the same when the same evidence will support both actions. If, under the well-established rules of law applicable to the question under consideration, the appellant is entitled to an equitable remedy to enforce the collection of said check, this court does not intend to deprive him of that remedy; but if, under said rules, the present action is a bar to another action, this court is powerless in the matter.
We adhere to the former opinion in this case.
The judgment is affirmed. Costs of this appeal are awarded to respondent.
Stockslager and Ailshie, JJ.„ concur.