Perry v. Herbert

WheeleR, J. It is not deemed necessary to examine in detail the various pleas, exceptions, and rulings of tiie court presented by the record, or to investigate tiie merits of tiie case on the statement of facts before us. There are manifest irregularities in the proceedings, which appear to have been occasioned, principally, by tiie manner in which the pleadings were eon-ducted on the part of the defendant. His answer is to be found in detached parts, of various dates, consisting of amendments upon amendments, variant and inconsistent in their statements, at one time claiming to have been entitled to one credit, at another to a different one, and at another to have made full payment. The original and its several amendments are blank in dates, and are vague and uncertain in their several averments of the matters of fact on which'the defendant sought to rest his defense. It is not surprising- that there should appear to be a want of entire consistency in tiie rulings of the court, at different times, on the sufficiency of these pleadings, or that, at one time, 1 lie same exceptions should have been sustained and at a subsequent time, to have been overruled. No one of the several pleadings filed by tiie defendant presents, within-itself, with anything like the requisite certainty and accuracy, facts which constitute a defense "to tiie action. It is to be gathered from tiie various allegations of the defendant, made from time to time, that, if well pleaded and [3] true, he may have a good defense, in whole or in part. Bat that defense is not presented upon the record in a manner which can receive judicial sanction without a departure from everything like order, propriety, and consistency in pleading. Some regard to these must be observed in order to attain the ends of substantial justice. There must he some limit to the privilege of amendment, some order observed in stating the party’s ease. The court is under no obligation to search through the papers in a cause in order to collect, here and 'there, the fragments or elements of his ease which a party may have placed there at different t imes, through a series of years, to see whether enough can be collected and combined together to make out a good cause of action or ground of defense. It is the duty of parties, not of the court, to reduce to order and place in proper form on the record the facts on which they rely. The court repeatedly ruled that the facts relied on must be stated with such certainty of time anti place as to enable the opposite party to come prepared with his proofs. This has not been done in the present ease. Under tits averments of the answer the plaintiff might have been surprised with evidence of transactions settled years before those on account of which the note in suit was given had their origin. To meet any evkleuce which might have been given under the averments lie must have been prepared with proofs to explain all the transactions which the defendants ever had with Ward at any time, however remote. The defendant had no right thus to embarrass the plaintiff’s case. If lie had a good defense it was certainly within his knowledge. If he could prove, lie could certainly allege the facts with some degree of certainty. The pretense that lie could not state in what the mistakes in the account consisted, for the reason that it had not been furnished him, appears to have been unfounded in fact, for he did produce tiie account, or a part of it, oil the trial, and it was proved to have been delivered to him receipted. The court ruled rightly in so far as the exceptions to the answer were sustained, but erred in so far as they were overruled. That part of the answer in respect to which the exceptions were overruled appears to have been subject to the same objections as other portions of it. Those objections had been pointed out by repeated exceptions. Opportunities had been afforded from time to time to amend. The objections were not removed by the amendments, and the court erred in not sustaining the exceptions to the answer and its several amendments. We deem it unnecessary to advert to the evidence embodied in the statement of facts further than to remark that it is by no means satisfactory, and there is reason to apprehend that injustice lias been done upon the trial. We are of opinion that the judgment be reversed and the cause remanded, with instructions that tiie exceptions to the answer and to its several amendments be sustained, and that the defendant have leave to plead anew to the merits. Ordered accordingly. Judgment reversed.