Kelly v. . Downing

Earl, Ch. J. The plaintiff, as sheriff, having attached the note mentioned in the complaint, became the legal holder of the same, and he had the right to take all appropriate legal proceedings at law or in equity to collect or enforce payment of the same. (Code, § 232.) In this case, he commenced an equitable action against the defendants, alleging that the defendant Bailey had placed in the hands of the other defendants a sufficient amount Of money expressly to pay this note, and Bailey was properly made a party as having an interest in the fund which the plaintiff sought to reach. The action was an appropriate one, if the allegations in the complaint could have been sustained by proof. But the proof entirely failed, as appears from the findings of the court at Special Term, to sustain these allegations, and I can see no mason, in the evidence or in the findings, to find fault with the con *77 elusion reached in this respect by the court. But it is claimed that the court erred in not giving judgment upon his default .against the defendant, Bailey. As the plaintiff failed to establish his claim to the specific fund in the hands of the other defendants, no judgment could be rendered against Bailey in reference to such fund. His personal liability was solely upon the note, and the only judgment that could have been rendered against him was upon the note. While a judgment upon the note was not within the prayer for relief, it is claimed that such a judgment could have been given under section 275 of the Code, which is as follows: •“ The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint ; but in any other case, the court may grant him any relief consistent with the case made by the complaint and embraced within the issue.” Here, it is not claimed that a judgment upon the note is within the relief demanded against the defendant, Bailey. Ho relief whatever is demanded against him; not even costs. But it is claimed that a demurrer is an answer within the meaning of this section, and that a judgment upon the note would be “ consistent with the case made by the complaint and embraced within the issue.” I am against this claim in both aspects. The term “ answer ” as used in this section, does not include “ demurrer.” Answer and demurrer are ■distinct pleadings under the Code, having different offices and different characteristics, one forming an issue of law and the other an issue of fact; and, as generally used in statutes and law books, the term answer does not include or mean demurrer. My attention has been called to but one section in the Code where the term answer, as used, may be said to include demurrer. (Section 246.) In a very liberal sense, a demurrer is an answer to a complaint. (Broadhead v. Broadhead, 4 How., 308.) But it is so different from an answer that it can never be held to be included in the term answer unless the context or manifest purpose of the term shows that it was so intended. Here there is nothing in the context, and, so far as *78 I can discover, nothing in the purpose for which the term was used to show that the legislature intended to include demurrer in the term answer in this section. I can see no reason in construing this section, for departing from the ordinary course of construction, that words are to receive their plain and ordinary meaning. But I go still further and hold that a judgment upon the note would not be consistent with the case made by the complaint. It was not the object of this section to aid a plaintiff who had insufficiently stated the cause of action upon which he seeks judgment, but simply to aid him if his complaint is adequate for the judgment he asks, except his prayer for relief. In this case, the complaint states but one cause of action, and that one in equity. A suit upon the note would have been an action at law. There was nothing in the whole framework of the complaint, nor in the prayer for relief that would lead Bailey to infer that a judgment would or could, be taken against him upon the note. It is entirely clear that he was made a party solely on account of his interest in the fund which plaintiff was seeking to reach. If Bailey had a defence to the note, even if it was proper to set it up in that action, there was nothing calling upon him to set it up, as the sole issue tendered by the complaint was, whether the money claimed had been specifically appropriated to pay it, and was held by the other defendants as trustees for the lawful holder of the note. I therefore reach the conclusion upon the whole case, that the judgment must be affirmed with costs. All the judges concurring in the result, except Hunt and SUTHERLAND, JJ., who did not V0Í6. Judgment affirmed.