Taylor v. Bissell

[227] By the Qou/rt Sherburne J. -This is an action in the nature of Assumpsit, on an account annexed, originally brought before a Justice of the Peace, and carried into the District Court by writ of Certiorari. The Defendant in his Answer set up an account in set-off greater, by the sum of about fifty dollars, than that charged in the Plaintiff’s complaint. To this answer there was no reply upon the part of the Plaintiff. Upon the trial before the Magistrate the Plaintiff offered to introduce testimony for the purpose of disproving one or more of the charges alleged in the Defendant’s answer. This testimony was objected to by the Defendant, and the objection was sustained by the Magistrate. The exclusion of this testimony by the Magistrate is alleged by the Plaintiff’s Counsel to be error, I have no doubt, however, that the testimony was properly excluded. The statute provision upon the subject is plain and conclusive. The account set up in the answer, and not denied by any reply of the Plaintiff, was rightly taken as admitted, and any testimony ■offered by the Plaintiff was outside of the issue made by the parties, and therefore irrelevant. The admission of the testimony would have been clearly erroneous. The language of the Statute is: (see page 303, Sec. 33) “ Every material allegation in a complaint, or relating to a counter claim in an answer, not denied by the pleading of the adverse party, must on the trial be taken to be true,” &c. In this conclusion í have not overlooked the fact that neither the oomplamt or answer are properly verified. It is urged by the Counsel for the Plaintiff that for this reason the allegations in the answer cannot be taken as admitted, although not denied: and that judgment should not have been given for the Defendant without proof of the facts alleged in the answer. Our Statute is imperative that the pleadings in an action before a Justice of the Peace must be verified. Jim. Statutes, Sec. 32, p. 302. The complaint not being verified, the Plaintiff therefore committed the first error in this respect. The Defendant attempted to verify his answer, but the verification is imperfect. lipón this state of the pleadings the parties went to trial, without [228] obj ectionupon either side on account of their insufficiency. If the irregularity was waived — and it certainly was, as far as the party had the power to do so — it is too late now to make the objection. The Plaintiff insists, as before stated, that although the pleadings may present an issue which can be tried by the Court, still the answer is not evidence: or, in other words, that no material fact alleged in it is admitted by the want of a reply. In this case, neither the complaint or answer were in accordance with the positive requirements of the Statute, and in my own opinion the whole matter might properly have been dismissed by the Magistrate upon his own motion. There are other interests at stake in the trial of causes than, those which pertain to the parties litigant. The object of the statute provision requiring that pleadings before Magistrates shall be verified was intended not only to protect parties-against sham complaints, answers and defences, but also to relieve Magistrates and jurors from an examination of them, and the Government from expense. It is a matter of public policy, as well as private interest, that parties shall as far as possible be denied the power of trifling with Courts by a pretence of rights which have no substantial foundation. The most favorable view which can be taken of this cause is, that the Magistrate had jurisdiction by consent of the parties. If he had such jurisdiction, then the cause must be entertained by this Court. There is in our Code but one form of pleading before Justices of the Peace, in this respect. In every case the pleading, in order to conform to the Statute, must, as before stated, be verified. It is evident, therefore, that the pleadings in this-case must answer the purpose designed or no purpose at all. If the consent or waiver of Counsel have given to them vitality, and to the Court, jurisdiction, they are good for all purposes intended by the Statute; if not, then they are a mere nullity, and neither of the Courts which have assumed jurisdiction has-, had any legal authority to do so. There having been no objection to the irregularity, we tbiulr the action may be entertained. See Day vs. Wilbur, 2d Caine's R. 134; Onderdonk vs. Ranlett, 3 Hill, 323. It must, however, be held for all the purposes of verified pleadings. [229] If the answer is not denied, it is admitted. The whole question must be determined by our statirte provisions. And the ■authority cited by the Plaintiff’s Counsel, from 1st volume of MonelVs PraoUoe, page 586, is not in point. The third causé for reversing the judgment of the Magisistrate is, that “upon a motion to dismiss the action, judgment upon the merits or in chief cannot be given.” Whether this position is correct or not, the facts in the case do not sustain it. That part of the return of the Justice applicable to the objection is in the following words: “ Defendant made a motion to “ dismiss the suit, as Plaintiff had failed to prove the board- “ bill: motion not sustained. Defendant here said he closed, “ but asked for a judgment for Defendant for a balance due on “ account, as it had not been denied, and had been verified by “ oath of Defendant. Parties left. ■ Upon examination of the “ testimony, I considered the Plaintiff had proved what he declared for $24 00. Defendant claiming $15 40 not being “ denied, I gave judgment for Defendant for $51 40 and costs “ of suit.” The return, therefore, shows that the judgment was not given by the Magistrate upon motion to dismiss the suit, but upon the motion of the Defendant for judgment in Ms favor for the balance due on account. Whether he could do do so or not without proof of the Defendant’s account, has already been considered. I do not see that the fourth error assigned has any point whatever. It is in these words: “Tire judgment involves the “ absurdity of allowing the value of one portion of an indivis- “ ible article sold Defendant and disallowing the rest.” The objection is probably based upon facts stated in the affidavit of the Plaintiff to obtain his Writ of Certiorari. The Court is, however, confined to the facts found in the return of the Magistrate who tried the cause. There' is nothing in the return to which this objection can possibly have any application. The fifth error assigned has already been disposed of. The sixth is in the following words: “ The Plaintiff and his “ Counsel, without fault upon their part, were under a mistake “ respecting a decision of the Justice upon a motion to dismiss, “ and were thus deprived of the right to be heard on the mer [230] “its of the case, or of making a motion to amend proceedings.” In this there is no error in law. If the statement is true, the Plaintiff might or might not have been entitled to some remedy: but that would have depended upon the whole circumstances of the case. It is not a question which can be noticed in this form of proceeding. The judgment of the Magistrate in which the cause originated must be affirmed.