Markey v. Mettler

Wright, C. J. The only .question for our consideration, is, did the court err in entirely disregarding what is styled, by the parties, the plea of the statute of limitation. The plaintiffs insist, that the plea is defective in form and substance. That it “is exceedingly defective in all the material parts of such plea, requires no argument to demonstrate. Instead of stating the facts which constitute the defendant’s ground of defence, in a logical form, it is for the most part, a mere statement of conclusions of law. On demurrer, or on motion for a more specific statement under the Code, it would clearly be bad. And, indeed, we would not say that before trial, it might not properly have been stricken from the record, on motion. Granting all'this, however, the important question still remains, whether, not being replied to, and no objection of any kind being made to it, for want of form or substance, the court was justified in entirely disregarding it on final hearing. It contains no impertinent, scandalous, or matter strictly irrelevant, but states what is a proper subject of plea, in a loose and very imperfect manner. We can hardly think it would be a safe rule, under such circumstances, to treat it, as appears to have been done in. this case, as if there had been no attempt to set up such de-fence. The safer rule is, where the subject matter of the plea, is such as might be properly set up, to require the plaintiff to get rid of it, by motion or otherwise, before trial, and not on final trial, permit him to take judgment as for want of plea. This rule recommends itself as plain,’ and but little liable to prejudice parties by taking them by surprise, when on trial; while the other, will leave it, uncertain in its effect, depending upon the technical or substantial accuracy of each pleading. • The judgment will therefore be reversed, and cause remanded, with leave to parties to make up the issues.