Williams v. Hutton & Bourbonnais Co.

AlleN, J. Tbe appeal in this case is tbe result of a misconception of tbe nature of tbe pleadings filed by tbe defendants. Under tbe common law, defenses arising after tbe commencement of tbe action could not avail tbe defendants for tbe purj pose of adjudging tbe rights of tbe parties, and were only effective to dismiss tbe action then pending. If they arose after tbe. commencement of tbe action and before tbe defendant filed bis plea, be could take advantage of them in tbe plea, and after plea filed by a plea puis darrein continuance. Tbe pleas bad to be under oath, and if since tbe last, continuance, were a waiver of other pleas. 1 Chitty Pl., 657-9; Yeaton v. Lynn, 5 Pet., 231; White v. Guest, 6 Blackf. (Ind.),, 231; Rowell v. Hayden, 40 Me., 585; Bank v. Bank, 32 Ind., 429; Allen v. Newberry, 8 Iowa, 69; Mount v. Scholes, 120 Ill., 399. In the last,case, wbicb is based on Cbitty and Tidd, tbe Court summarizes tbe procedure and its effect: “Tbe rule upon this subject, at common law, is that any matter of defense arising after- tbe commencement of tbe suit cannot be pleaded in bar of tbe action, generally. If such matter arise after tbe commencement of tbe suit and before plea, it must be pleaded to'the frir-ther maintenance of tbe action. But if it arise after plea, and *222 before replication, or after issue joined, whether of law or fact, then it must be pleaded .puis darrein continuance. A plea of this kind involves grave legal consequences that do not attach to an ordinary plea. It only questions the plaintiff’s right to further maintain the suit. When filed, it, by operation of law, supersedes all other pleas and defenses in the cause, and the parties proceed to settle the pleadings de novo, just as though no plea or pleas had theretofore been filed in the case. By reason of pleas of this kind having a tendency to delay, great strictness is required in framing them. In this respect they are viewed much like ple.as in abatement, and, for the same reason, they must, like those pleas, be verified by affidavit.” Under the Code system, which prevails with us, forms which do not make for the trial of causes upon the merits as speedily as possible are abolished, and instead of the pleas referred to, which, if true, would only defeat the action pending, the defendant may have the benefit of defenses arising after the commencement of the action by supplemental answer. In 31 Cyc., 506, the author correctly states the new rule: “As a general rule, defendant may, with leave of court, file a supplemental answer alleging any facts which may have arisen or become known since the commencement of the suit and which may have a material bearing on the final determination of the suit, such as a settlement between the parties or a discharge in bankruptcy. Such new matter must be in addition to, or in continuance of, the original matter alleged, and the court may refuse to file a proposed supplemental answer when the allegations contained therein are not material, or do not show a defense to plaintiff’s claim, or are of facts which occurred previous .to the filing of the original answer. Any defense which defendant could, as a matter of right, have pleaded puis darrein continuance under the old procedure should be allowed under The Code as a supplemental answer. If the sufficiency of a supplemental answer is doubtful, the court will not determine on a motion the validity of the defense set up by it, but will allow it to stand.”- *223 The Revisal, see. 479, does not require that new matter constituting a defense must exist at the'time of the commencement of the action, and a defense arising thereafter was recognized in Puffer v. Lucas, 101 N. C., 285, and in the later case of Smith v. French, 141 N. C., 2, it was held that, “A counterclaim connected with the plaintiff’s cause of action or with the subject of the same (Revisal, sec. 481, subsec. 1) should not necessarily or entirely mature before action commenced, nor even before answer filed.” It is also permitted under our practice to plead inconsistent defenses (McLamb v. McPhail, 126 N. C., 218), and matter alleged as a defense not constituting a counterclaim is deemed to be denied without a reply.. Smith v. Burton, 137 N. C., 79. An estoppel by judgment is new matter constituting a defense which must be pleaded, and when relied on, it must be established like other defenses, at the time of trial by the verdict of the jury, unless the facts relating to the plea are admitted, when it may be passed on by the judge as matter of law. Harrison v. Hoff, 102 N. C., 126; Blackwell v. Dibbrell, 103 N. C., 270. It follows, therefore, that the plea filed by the defendants has no other legal effect than to allege another defense by supplemental answer, in addition to those theretofore relied on, to which it was not necessary to reply, as it has none of the elements of a counterclaim, and which must be passed on by a jury, unless all the facts are agreed to. The parties to the two actions are not the same, and when we turn to the reply, filed unnecessarily by the plaintiff, we find, not only a denial of jurisdiction in the Federal Court, which may be a question of law to be determined by the Court, but also a denial of any privity between the defendants in this action, and the plaintiff in the judgment relied on, which is an issuable fact, and if there is no privity, the defendants cannot rely upon the judgment. An interesting and important case upon the question of privity, as applied to the facts before us, is Bryan v. Malloy, 90 N. C., 510. *224 We are, therefore, of opinion that his Honor correctly held that the defendants were not entitled to judgment on the pleadings or to one dismissing the action. The “consent” referred to in the ruling of the court was not a consent that the judge should find the facts and adjudicate the rights of the parties, but that he might hear the motion of the defendants at another place, instead of at the place where the motion was first returnable. Affirmed.