Eddy v. Cochran

Hutchinson, J. Eddy has brought his audita querela, complaining that Cochran, having recovered a judgment against him, from which the complainant appealed to the county court, agreed to submit the action to arbitrators, naming them, the hearing to be at a day after the session of the court to which the appeal was taken; and yet entered the action by complaint, and procured an affirmance of the judgment, and took out his execution, &c. Cochran has plead two pleas, upon which issues have been taken and found by the jury for the complainant, Eddy. The action is brought before this court upon exceptions taken at the trial, and a motion for a repleader, and a motion in arrest. It is contended, on the motion in arrest, that the complaint is bad, because it sets forth no good defence to the original action. The Court consider the complaint well enough in this respect, because it sets forth that the complainant had not his day in [362] Court, because of the mutual agreement to arbitrate, in violation of which, he complains Cochran obtained the affirmance of his judgment. In deciding this motion, those facts must be taken as true; and if true, they entitle the complainant to relief, were there no other point in the defence. Two points are agitated, which arise on the exceptions taken at the trial. The first is the variance between the contract set forth, and the written contract adduced in evidence. It is true the written contract is broader than the contract set forth in the complaint. Two actions were submitted, while the complaint speaks of one only. But the complaint does not attempt a declaration upon the written contract. It alleges that certain things were agreed, &c. and proceeds to show why he did not enter his appeal, and as much of the written contract as proves these allegations was as properly admitted as if the whole cohtract had been spread upon the complaint; and there being other things or other considerations in the writing does not constitute a variance, while a part of the writing does comport with the allegations in the complaint. 2d. By the exceptions, it appears that certain evidence, offered to prove the second issue, was excluded. This would have been proper evidence, if offered under the first issue, or if the second issue had consisted of a traverse of the whole plea in bar. Buxt that part of the plea in bar which would have been proved by the excluded testimony, was .not traversed, and the same testimony was not pertinent to the part of said plea in bar which was traversed. The testimony was, therefore, properly excluded. This leads to a consideration of the motion for a repleader, and here we cannot but notice the loose state of the pleadings. They are particular, long and multifarious. The Court cannot see why the general plea of not guilty would not have put the complainant upon the proof of his whole complaint, and let in the whole defence attempted by the defendant. Trials have been had upon such an issue, without objection, and ■ it is not easy to conceive of any objection that could arise. The complaint charges that the defendant has done things that are wrong; has tortiously obtained a judgment and execution. The defendant says he is not guilty — that is the real question to be tried. But this plea in bar is so multifarious, so little in the style of a plea in bar in an action at law ; so much more like an answer in chancery, a suggestion has been made whether judgment ought not to be rendered for the complainant upon the .verdict, as taken upon the first issue, without regarding the second plea at all. But, upon full consideration, and as the second plea is not demurred to specially, on account of duplicity, we consider it as containing some matters of substance that ought to have been met by a traverse, if a traverse were taken to any part of it. The plea sets forth, that the defendant notified one of the arbitrators, and informed the complainant, that said arbitrators would not act upon the business submitted, and he gave notice to the complainant that he the defendant would not ar [363] bitrate, and requested him to enter his appeal, &c. There is no traverse of this withdrawing the submission and notice, &c. but only of the refusal to act as arbitrator, and notice .of the same to the complainant. This traverse is wholly immaterial, for the defendant had a right to withdraw his submission and pay his fifty dollars, according to the terms of the written agreement, and if the appellant had seasonable notice of the revocation, with liberty to enter his appeal, he should not content himself with such a traverse as he has made in this case. Calvin Sheldon, for the complainant. Leonard Sargeant and C. Langdon, for the defendant. The Court, therefore, consider the plea in bar as not met by a material traverse, and set aside the verdict, and award a repleader. Skinner, Ch. J. absent.