Gervin v. Beaird

Wtlt, J. This case presents a question of practice. The plaintiff sued the defendant on an account, and citation was served personally on the twelfth of February, 1872. On the twenty-seventh of April, 1872, the defendant answered, pleading payment. On the ninth of April, 1874, nearly two years after issue joined, the defendant filed the following motion: ,cNow comes the defendant and moves the court for leave to withdraw the original answer filed in this case, and to substitute therefor [631] averments which he now makes, that he is in no manner indebted to the plaintiff, as alleged, and that he so informed his attorneys and instructed them so to plead j avers the answer already filed was without his knowledge and filed by his attorney through haste and inadvertence, and that he should not be bound or prejudiced thereby, and in support of this application presents the affidavits of his attorney.” The motion was sustained by the court, and the plaintiff took a bill of exceptions. We think the court erred. The defendant is bound by the pleadings he pleaded through his counsel. Without disavowing their authority, he can not come in two years after he has raised the issue of payment, which admits the debt, and shift his defense by setting up an inconsistent plea, a denial of the indebtedness. If he did not instruct his counsel to plead payment, how did they know that there was such a defense ? A litigant will not be permitted to shift his position, as was attempted in this case, in order to escape the consequences of his solemn judicial admissions standing on the record for nearly two years. The defendant has failed to prove the allegation of payment. It is therefore ordered that the judgment herein, in favor of defendant, be annulled, and it is ordered that plaintiff recover of the defendant thirteen hundred and fifty-three dollars, with legal interest thereon from the twelfth of February, 1872, and costs of both courts. Rehearing refused.