Hilliard v. Loeb

SMITH, J. Action begun in a justice’s court of Tripp county, in which plaintiff recovered judgment by default. Judgment was entered August 16, 1911, and on August 19th the defendant perfected an appeal to the circuit court on questions of both law and fact, and demanded a new trial. When the cause was reach [333] ed for trial in the circuit court, a jury was impaneled and a witness sworn -on behalf of plaintiff, whereupon defendant interposed the following objection: “At this time the defandanl objects to the introduction of any evidence for the reason that no complaint has been filed or served in this action, and the records show that there was none in the justice’s court also.” The objection was overruled, and defendant took no further part in the trial. Plaintiff proceeded with the trial and, at the close of the evidence, the jury returned a verdict in his favor, and judgment was entered thereon. Defendant appeals from the judgment and assigns as error the overruling of his objection to the introduction of any evidence on the ground that there was no complaint in the case. Appellant’s contention on this appeal is that, upon the record before the trial court, there was no complaint to sustain the verdict of the jury or the judgment entered. Subdivisions 2, 4, 5, § 18, of the Justice’s Code, provide that pleadings “ (2) May be oral or in writing, * * * * (4) If in writing, must be filed with the justice. (5) If. oral, an entry of their substance must be made in the docket.” [1-3] It must be conceded that a complaint, either oral or written, is necessary to support a judgment. 24 Cyc. 555; 31 Cyc. 45; Baylies, Code Pleading, §• 2. Presumptively, the record and files returned by the justice and on which proceedings were had in the circuit court contained a complete recital of all acts done in the justice’s court, and embraced all papers filed in that court. This' record contains no complaint in writing. The completeness of this record and of the files returned was not questioned in the circuit court; nor is it questioned by respondent in this court. It conclusively appears, therefore, that no complaint in writing was ever filed. Does the record show an oral pleading? The transcript of the justice, and all files which were before the trial court, are before us on this appeal. The statements contained in the summons do not constitute a complaint; nor has any authority been cited which holds that statements in a summons may aid recitals in the docket, which must show the substance of an oral complaint. In Sinkling v. I. C. R. Co., 10 S. D. 560, 74 N. W. 1029, this court held that a defective ” oral complaint entered in the docket may be construed with the written answer filed. , But there was no answer in the case at bar. Nothing appears which can serve to aid the recitals in the justice’s docket. [334] [4] It is not suggested that the docket purports to disclose that the pleadings, or any of them, were oral or any entry of “the substance” of an oral complaint, 'or any pleading whatever. It seems, therefore, to appear quite conclusively that there was no complaint, either written or oral, when the trial was had and judgment entered in the justice’s court. Defendant did not appear in the justice’s court, and therefore, no such objection was there made. But the defendant was not required to appear in that court to litigate the case unless he chose to do so. It was incumbent upon plaintiff to see to it that some complaint, written or oral, was •before the justice’s court -to sustain the judgment. Defendant had the right to appeal from the default judgment, as he did; and, upon such appeal, the case came before the circuit court for trial de novo, exactly as it stood in the justice’s court, and defendant had the right to raise the same objection to the want of a complaint that he might have made in the justice’s court; and the circuit court could have made any order that the justice might have made in the first instance. The sufficiency of a pleading and the absence. of any pleading present entirely different questions. The objection in the trial court did not raise any question as to the sufficiency of any pleading, but- it did raise a question as to the entire absence of a complaint in both courts. The record of the justice, including the docket entries and all files, which must show the existence of a complaint, was before the trial court, and the sufficiency of that record was challenged by the objection made. True, an oral pleading cannot be filed; but the statute prescribes the only competent evidence to show that there was an oral pleading, viz., the recital of its existence and substance in the docket entries. Certainly, under this statute, the existence of an oral pleading could not be proved or disproved by oral evidence. In Dewey v. Feiler, 11 S. D. 632, 80 N. W. 130, this court said: “The docket of a justice should show the object of the action, amount of money claimed, a minute of the pleadings, if in writing, if not in writing, a concise statement of their material parts. Comp. Laws, § 6123. Where it is silent as to these facts, the inference is that they did not exist. Then there o were no pleadings, oral or written, in the former action. Consequently, no issues and no trial on the merits could have taken place.” There is no suggestion or statement among the recitals in the [335] docket entries that the pleading was oral or that a written complaint was filed. The necessary conclusion is that no complaint, oral or written, was ever made in that court. [5, 6] The objection called the attention of the trial court to the record of the justice, for upon that alone the case stood for trial, and an examination thereof must have disclosed to the trial court the entire absence of a complaint, written or oral. We are of opinion that the objection challenged the existence of any complaint, written or oral, and that on the justice’s record the objection was well founded. When attention was called to' the nonexistence of a complaint, the trial court had authority to permit the filing of pleadings, and, upon request, should have permitted pleadings to be filed! In the absence of such request and the filing of proper pleadings, the court should have dismissed the action. Bergman v. Margeson, 139 N. W. 374, 31 S. D. 1; Dewey v. Feiler, supra. The judgment of the trial court must be reversed, and the cause remanded for further proceedings in the trial court. WHITING, P. J„ and POREEY, J„ dissent.