McAlister v. Clark

Hinman, C. J. The defendant being sued for the penalty incurred under a by-law of the city of New Haven, demurred to the declaration, and the declaration having been sustained by the city court, he appealed to the superior court, and there the case was reserved for the advice of this court, which also sustained the declaration, and advised the superior court to render judgment for the plaintiff. Before the judgment was in fact entered up, he moved the superior court to be permitted to withdraw his demurrer and to plead the general issue, which motion the superior court denied, and entered up judgment in conformity with the advice of the Supreme Court of Errors. Prom this decision the defendant files his motion in error and brings the record before this court. It is not claimed that by the rules of the common law the defendant would have this right to withdraw his demurrer and plead again, but it is insisted that under our statute allowing the parties to amend any defect, mistake, or informality in the pleadings or proceedings, and also allowing either party who shall suppose that in any part of the pleadings he has missed the ground of his plea, and that he can plead a different plea that will save him in his cause, to change his plea and plead anew, a party has a right in any stage of the proceedings to change his plea, and that it is error in the court to deprive him of his right. No doubt a party who comes within the language of the [257] statute lias the right to change his plea; and yet this right must necessarily be exercised subject to and in conformity with the established rules of the court. There must be an end to litigation, and it is obvious that a right in a defendant, as often as one plea is decided against him to change it for another, would render litigation so interminable as not to be endured. We are aware that some stress is laid by the defendant upon the fact that the judgment of the superior court had not been entered up in fact at the time he made his motion. But the advice of the Supreme Court of Errors had been given to enter it up, and the parties knew precisely what it would be, and to allow advantage to be thus taken of the interval between the giving of the advice and the actual rendering of the judgment, is the same in effect, in all those cases which go to the Court of Errors for advice, as to allow a change of plea after judgment is in fact rendered. As the time beyond which an amendment may not be allowed has not been prescribed by the statute, it becomes a matter of practice, and must of course rest in the discretion of the court; and there seems to be no more propriety, strictly speaking, in allowing a defendant who has chosen to rest his case upon a demurrer to the declaration, to change his plea after the demurrer has been decided against him, than there is in allowing a plaintiff to amend his declaration after a verdict in his favor, and an arrest of judgment in consequence of the insufficiency of the declaration. It is true that such an amendment may be allowed under special' circumstances, but it will not be in ordinary cases. Betts v. Hoyt, 18 Conn., 469. The practice is undoubtedly more liberal in allowing a change of plea in case of a demurrer overruled, than in allowing amendments to declarations which have been held to be insufficient, probably in analogy to the practice in courts of equity, but it is equally a matter of discretion, and therefore not the subject of a motion or writ of error. We liave not thought it necessary to consider the question as to whether a bill of exceptions can be allowed by our practice by the superior court, and a motion in error be founded upon it, since we are of opinion that there is nothing in the [258] bill of exceptions upon which a motion in error can be sustained. The defendant, after judgment for the plaintiff on the hearing in damages, claimed the right to prove, and offered evidence to prove, that each and all the allegations in the declaration were untrue, but the court excluded the evidence, and thereupon assessed the damages in the case at the sum of fifty dollars; and on this ground the defendant asks for a new trial. The penalty fixed in the by-law for the offense charged against the defendant is fifty dollars precisely. It can be no more nor less than that sum. The defendant, however, claims that on the assessment of damages, when a demurrer is overruled, the damages are always nominal, unless the actual damages are proved. That this is so in cases where the damages may vary from a nominal sum to the amount claimed in the declaration, according as the proof may show that the plaintiff is entitled to one sum or another, is no doubt true. And in cases of this sort, as the demurrer admits only a cause of action, and does not admit any aggravated circumstances though charged in the declaration, the plaintiff will recover only nominal damages, unless he shows what the actual damages were. But in a case like this, for a precise penalty given by a by-law, there is no room for nominal damages ; an admission of a cause of action is an admission that the damages must be assessed at the precise amount of the penalty. We advise the superior court that there is no error in the judgment complained of, and that a new trial should not be granted. In this opinion the other judges concurred ; except Mc-Curdy, J., who dissented.