(specially concurring) .
I concur in the result but not in all the-language in the opinion. I think the statement, that cases are generally to be tried on the proofs rather than the pleadings, is-unnecessary and apt to be misleading. It is true that demurrers are abolished, but there is nothing in the Federal Rules of Civil Procedure to keep issues of law from-being presented by the pleadings. The motion to dismiss may serve the' same purpose as a demurrer formerly did.
I think the following statement in the opinion is also pure dictum: “Expensive trials of meritless claims are sought to be avoided in the main by pretrial and summary judgment procedures.” There was-no motion for summary judgment in this case, and there is nothing in the record to indicate that a summary judgment would be proper. Then why suggest it ?