I concur in the judgment; but I do so reluctantly. If the statements made in the several pleadings of defendant may be assumed to be true, as a matter of justice he is entitled to some equitable consideration. And although it may be true that so-called “authorities” support the judgment, in my opinion, to deny any relief whatsoever in the face of pleaded facts which, if established, should result in some sort of judgment in favor of defendant, savors of a yielding to form rather than a reliance upon substance. Generally speaking, application of the rule of “stare decisis” may be an aid to the administration of justice; but when it becomes apparent that an injustice will result, ancient declarations of law—which may have been unquestionable with reference to situations with which former courts were faced— *275should not now be permitted to prevail. In these days when liberality in pleading is being so insistently urged by the lawyers of our country, it would seem unfair to refuse to entertain a probable defense to an action, or a good cross-complaint thereto, for the sole reason that facts which were apparently sufficient to authorize some sort of relief to defendant were poorly pleaded or were not presented in accordance with established “form”. Although reasonable and sound rules for pleading may not and should not be wholly disregarded, neither should pure technicalities nor “red tape” of any sort with respect to such rules be recognized as even persuasive in affording a sufficient reason for a denial of simple justice.
Carter, J., concurred.