Spiess' Admx. v. Bartley

[279] Opinion of the Court by Judge Carroll. — Reversing. Charles Spiess and Benjamin Bartley, having a controversy about the hire of a traction engine owned by Bartley and rented by Spiess, submitted the case in December, 1905, to Edward Belle and Ed C. Dawson, arbitrators, and, in the event they could not agree, to William J. Dawson, umpire. The arbitrators and the umpire in December, 1905, made the following award in writing: “Said Spiess shall pay Bartley $1.75 per day from the 6th day of November, 1905, until the engine is returned to said Bartley at New Plaven. Ky., this being a concession of $1.00 per day from the contract price. Said Spiess is to return said engine to New Haven, Ky., and replace the main cogwheel which is broken with a new one; said Spiess to have five days after engine is retumd to New Haven in which to replace said wheel.” In January, 1906, Bartley, ignoring the submission and award, brought suit against Spiess to recover from him rent for the engine at $2.75 per day, amounting to $195.25, and $35 damages for breakage. To this petition Spiess answered, denying the indebtedness, and in a separate paragraph pleading the award in bar of Bartley’s right to maintain an action independent of the award. In February, 1907, the death of Spiess was suggested, and in October, 1907, the action was duly revived against the administratrix. On February 11, 1908, Bartley filed a reply, in which he admitted that the matters and things sued upon in his petition were submitted to arbitrators and! an umpire, who in December, 1905, rbade their award,, copies of which he filed with his reply. He averred that the award covered all points in controversy, and [280] settled all matters in dispute, and sought to recover on the award the sum of $217.51, the amount found to be due him under the award according to his method of calculation; and for this amount he asked judgment. On February 14, 1908, the following order was made: “This cause having been heretofore revived against Amelia Spiess, as administratrix of Charles Spiess, and being called for trial, the allegations of the reply, not being controverted, are taken for confessed, and it is adjudged that plaintiff recover of Amelia Spiess, as administratrix, the sum of $217.51, with 6 per cent interest.” It will thus be seen that in the petition filed appellee sought to recover upon a contract, and that in a reply ■he abandoned the contract, and sought to and did recover upon the award. There was a departure from the original cause of action — in fact, a new and independent cause of action was set up in the reply. Both of the parties to the controversy might have ignored the award, but they'did not do this. Spiess in his answer expressly relied upon it as a bar to a recovery upon the contract.. As the submission covered all the matters in dispute between the parties, Bartley should in his original petition have sued on the award, but, failing in this, should have set it up in an amended petition. The controversies between the parties were merged in the award. The plaintiff can not in a reply depart from the cause of action stated in his petition, or obtain a judgment by default upon a cause of action set up for the first time in a reply. Under Civil Code of Practice the cause of action upon which a plaintiff relies to obtain judgment must be set up in a petition, or an amended petition, section 90 providing that “the petition must state facts which constitute a cause of [281] action in favor of the plaintiff against the defendant;” whilst under section 98 a reply may contain only “(1) a traverse, (2) a statements of facts which constitute? an estoppel against or avoidance of a set-off and counterclaim, or defense stated in the answer, (3) a counterclaim against the set-off, and (4) a cross-petition.” The established rules of pleading are not as generally observed as they should be by either the bench or bar, but it would be an unusual departure to permit a judgment by default to be rendered upon a cause of action stated in a reply. Spaulding v. Alexander, 6 Bush 160. Wherefore the judgment is reversed, with directions to set aside the judgment and permit Bartley, if he desires to do so, to file an amended petition,, and the parties may then tender other pleadings necessary to complete the issues.