Brainard v. Staub

Andrews, C. J. The plaintiff on the 25th day of March, 1891, made application to the Superior Court in Hartford County, praying that a writ of peremptory mandamus be issued, commanding the defendant, who is the comptroller of the state, to draw his order on the treasurer in favor of the plaintiff for the sum of sixty-six dollars and sixty-six cents, which sum the plaintiff claimed was due to him on the first day of March, 1891, for services as executive secretary. Upon that application an alternative writ of mandamus was issued and was duly served upon the defendant, returnable on the first Tuesday of April then next. On the return day, being the 7th day of April, the defendant came into court and made return to the alternative writ. The return was in three parts. The first and second paragraphs of the first part were as follows : “ 1. The defendant admits that on the first Monday of March, 1891, he was and ever since has been comptroller. 2. He further admits and avers that on the 18th day of March, 1891, said Austin Brainard presented to him as comptroller a demand against the state for the sum of $66.66, and that the defendant then refused to draw his order on the treasurer for the payment of said demand.” Afterward the plaintiff moved the court to expunge the second and third parts of the return. The court, on the *575 23d day of June, denied the motion as-to the second part of the return and granted it as to' the third part, and that part of the return was accordingly expunged. On the 19th day of October the defendant filed a motion to quash the alternative writ, for that “ it is not suggested nor alleged in said writ that the prosecutor has ever made any demand of the defendant to draw the order mentioned in the writ, and that it is not suggested nor alleged in said writ that the defendant ever refused to comply with any demand of the prosecutor to draw such order.” This motion the court refused to receive as coming too late. The case was heard on the 27th day of October. On the third day of November, and before the case had been decided, the court directed the plaintiff to amend the alternative writ, and it was amended by inserting paragraph 5% as appears on file. On the 6th day of November the defendant asked leave to make an amended return to the amended writ, but the court denied that motion. On the 13th day of November judgment was rendered, finding the issues in favor of the plaintiff, and a writ of peremptory mandamus was issued. These are the features of the case upon which the questions that are made principally arise. The defendant has appealed to this court. Six reasons of appeal are presented and argued in his brief. The first is “ that the court erred in striking out the third portion of the return.” The alternative writ in mandamus is usually regarded as standing in the place of the complaint in an ordinary civil action. A motion to quash performs the office of a general demurrer and brings the law of the case fully before the court, while a return stands in place of n answer. To each of these the general principles and rules of pleading and practice apply, so far as they are applicable to the subject matter in each case. Woodruff v. N. York & N. Eng. R. R. Co., 59 Conn., 63; State’s Attorney v. Selectmen of Branford, id., 402; Am. Casualty Ins. Co. v. Tyler, 60 id., 448. The plaintiff had alleged in the alternative writ that he was on the 20th day of January, 1891, appointed executive secretary by the governor of the state of Connecticut. This *576 allegation was directly denied by the defendant in the first part of his return. Part third of the return, so far as it added anything to this denial, consisted of allegations that Luzon B. Morris received a majority of all the votes cast for governor at the election holden on the fourth day of November, 1890, and that Mr. Morris did not appoint the plaintiff to be executive secretary, but had appointed another person. The issue so presented was an immaterial one in that it was between persons not parties to the record. It was impertinent in the sense that its decision either way would not dispose of the case before the court. Such a pleading may properly be expunged. Page v. Merwin, 54 Conn., 426; Logiodice v. Gannon, 60 id., 81. The reasons given by the Superior Court for its action upon this motion seem to fully justify it. The second reason of appeal is : — “ That the court erred in refusing to receive and hear the defendant’s motion to quash.” The force of this reason expends itself on the word “receive,” — that the court refused to receive, the motion to quash. Previous to the filing of this motion the defendant had made his return to the alternative writ, and in it he had expressly admitted that fact, the want of an averment of which therein was the ground- whereon he asked in this motion that the alternative writ be quashed. He did not ask leave to withdraw the return and substitute the motion to quash. He did not propose to do that, but to leave them both on the record. In Hoadley v. Smith, 36 Conn., 371, it was held that a party could not plead to the merits and demur at the same time, or at different times, so that both should be pending at the same time. To the same effect is section 10, rule 4, of the Practice Act Rules, 58 Conn., 567. See Powers v. Mulvey, 51 Conn., 432. In Hotchkiss v. Hoy, 41 Conn., 568, the general issue had been pleaded. The defendant asked leave, which was granted, to withdraw that plea and demur. It was held that that was proper. When a party desires to plead out of the order which the law or the practice has prescribed, he should move the court for leave so to do. *577 Such a motion is addressed to the discretion of the court, the granting or the refusing of which is not the subject of error. Adams v. Way, 32 Conn., 160; Healey v. City of New Haven, 49 id., 394. It is true that the argument on this part of the case took a wider range than is here indicated. This reason of appeal was argued as though the motion to quash had been received and overruled. If the amendment to the alternative writ which the court directed to be made, was properly made, then the ground for this argument was wholly removed. The third reason of appeal presents only a question of practice, which was clearly within the control of the trial court. As to the fifth reason of appeal, it does not appear that the question thereby presented was made and decided in the court below. The defendant insisted throughout the whole trial that no sum whatever was due to the plaintiff. He never asked the court to decide that a sum less than $66.66, was due. Practice Act Rules, chap. 17, sec. 1; 58 Conn., 584. The fourth reasou is that “ the court erred in permitting the amendment to the alternative writ, and in refusing to entertain the amended return filed thereafter. There can be no doubt that sections 880 and 1023 of the General Statutes gave the court ample power to direct the amendment to be made. This the defendant virtually admits, but he says he ought to have had an opportunity to make further answer after the amendment was allowed. If it was made to appear that the defendant was in any way misled by the omission in the alternative writ of that allegation which the amendment supplies, or that he was prejudiced in making his defense by the allowance of that amendment, or if a new issue had thereby been presented, it would have been the duty of the court to allow him further opportunity to plead and to be heard. But here the contrary appears. The amendment presented no new issue. It did not change the form of the action, nor the ground on which relief was claimed, and the fact which the amendment averred had been expressly admitted by the defendant. In *578 dependent of this admission it is found by the court, upon evidence, that a demand was made by the plaintiff upon the defendant and that the defendant refused to comply therewith, as is set forth in the amendment; and that after the evidence had been given upon this point by the plaintiff, “ the defendant’s counsel asked for and was given time and opportunity to rebut the same if he desired to do so, but he declined to offer any testimony on said point, the court giving him all the time he asked for, to wit, until the afternoon of the day of the trial, and he at no time made any claim that the time asked for by him and allowed by the court was insufficient for the purpose.” Under these circumstances we think no useful purpose could have been served by any further pleading. Santo v. Maynard, 57 Conn., 157. The error alleged in the sixth reason of appeal presents the same question which was discussed in State v. Staub, ante, page 585. We have no occasion to add anything to what is there said. There is no error in the judgment appealed from. In this opinion the other judges concurred.