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It might possibly be held that it is also competent for the defendant to move, under section 152, to strike out an objectionable reply, as a “sham or irrelevant defence.”-See Rae v. Washington Mutual Insurance Company, above cited ; though it may perhaps admit of a doubt, whether that section can be legitimately extended so as to include other defences than those made by answer.
Another proceeding open to the defendant, if the circumstances admit, is to move for judgment on the reply as frivolous, under section 247. See previous observations as to this remedy, both generally, and in reference to a frivolous demurrer or answer.
An important remedy is also given to the defendant by section 154, which runs as follows.
$ 154. If the answer contain a statement of new matter constituting a defence, and the plaintiff fail to reply or demur thereto within the time prescribed by law, the defendant may move, on a notice of not less than ten days, for such judgment as he is entitled to upon such statement, and if the case require it, a writ of inquiry of damages may be issued.
Though in terms somewhat inconsistent with section 153 as it now stands amended, no doubt this section will be held to be controlled by that amendment, and that, where new matter in the answer goes to defence only, and does not constitute a counter claim, a motion of this description will be inadmissible.
In Brown v. Spear, 5 How. 146, 3 C. R. 192, 9 L. O. 97, it was held that the above section clearly relates only to an answer which relies on new matter constituting a defence, and not to an answer by which the plaintiff's case was merely traversed, no material additional matter being stated. It was held that all the papers needed on such a motion are the summons, complaint, answer, and notice of motion. Where, however, the plaintiff is not likely to appear, it would be advisable to be prepared with formal proof of the service of the pleadings, on which to ground the order by default.—See Darrow v. Miller, 5 How. 247; 3 C. R. 241. For form of notice of motion see Appendix.
It seems clear, that if any allegation in the answer constitute, if admitted, a complete defence, the defendant, on the plaintiff's failure to plead thereto, may proceed under the above section.
The test as to the admissibility of a motion of this description would seem to be, whether the defence set up in the answer is, in its nature, integral or collateral. In Comstock v.
. Hallock, 1 C. R. (N. S.) 200, it was held that “when an answer sets up as a distinct and substantive defence, a denial of the cause of action ; and also, as may be done, sets up new matter in avoidance or bar, it will not be proper to give judgment for the defendant on motion, because of the want of a reply to such new matter, for the reason that there still remains an issue of fact, which is still to be disposed of, and which may yet terminate the suit in favor of the plaintiff. But, when the distinct cause of defence is substantially new matter, and, in pleading it, it becomes necessary to deny some of the allegations in the complaint, and there is no other denial in the pleading than such denial, forming, as it does, part of the defence of new matter: if the plaintiff omits all reply, the case comes within the 154th section of the Code, and judgment may be given for want of a reply.” A motion for that purpose was accordingly granted in that case, the facts bringing it within the principle above laid down.
The observations above made have reference to the Code of 1851, and the previous measures. Under the recent amendments, a motion of this description would seem to be impracticable, except in the case of a counter-claim, exceeding the plaintiff's demand, and omitted to be replied to.
If none of the above courses be taken by the defendant, and the reply disclose new facts, necessary to be met by counterallegations on his part, before issue can be properly joined on the pleadings as they stand, it is competent for him to amend his answer as of course, within the usual period after service of the reply. Cusson v. Whalon, 5 How. 302; 1 C. R. (N. S.) 27 ; Seneca County Bank v. Garlinghouse, 4 How. 174, and other cases before cited, under the head of correction of pleadings. Of course, if he take that step, he does so subject to the contingency of the plaintiff's amending his complaint in consequence, and of the whole circle of pleading having to be gone through a second time.
The above proceedings being exhausted, issue is now joined, and the effect of the completion of the pleadings as regards specific allegations of fact, is laid down by section 168, as follows;
§ 168. Every material allegation of the complaint, not controverted by the answer, as prescribed in section one hundred and forty-nine ; and every material allegation of new matter in the answer, constituting a counter-claim, not controverted by the reply as prescribed in section one hundred and fifty-three, shall, for the purposes of the action, be taken as true. But the allegation of new matter in the answer, not relating to a counter-claim, or of new matter in a reply, is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require.
The effect of the recent amendments in this section, in relation to averments in answer, assimilating the practice to that already existent as regards reply, in cases where no counterelaim is set up, has been already noticed,
It will be seen that by this section, and also by the corresponding provisions in the previous measures, any new matter alleged in the reply; need not be specifically traversed by any subsequent pleading, and does not conclude the defendant in any manner. Unless, therefore, such new matter constitute a feature in the case which necessitates an attempt to join issue in some other form than that presented by the existent pleadings, it will be scarcely worth while for the defendant to amend his answer as above, inasmuch as his power of bringing in any description of evidence, not entirely impertinent to the issue, as joined by the pleadings as they stand, is thus specially saved, without the necessity of any further measures on his part.
Of course co-defendants, possessing several interests, are not bound by each others answers, or by any admissions contained therein. Still less, is a defendant, who has not answered at all, bound by the pleading of one who has.-See Woodworth v. Bellows, 4 How. 24.
From the time of the service of the reply, issue is to be considered as finally joined, subject, during the period allowed him for that purpose, to the defendant's right to amend. Notwithstanding the temporary existence of that right, the plaintiff is, nevertheless, at liberty to proceed with the cause, by serving notices of trial, &c., &c., immediately after the reply is served, and is bound to do so at once, if the defendant waives his right to amend, either by express notice, or by noticing the cause himself.— Cusson v. Whalon, 5 How. 302, 1 C. R. (N. S.) 27, above cited. If, however, he take judgment within such period, and
without such waiver on the part of the defendant as above, he does so at his peril, and under the risk of having such judgment set aside, if the defendant serve an amended pleading in time. - Washburn v. Herrick, 4 How. 15; 2 C. R. 2; Dickerson v. Beardsley, 1 C. R. 37.
OF REVIVOR AND SUPPLEMENTAL PLEADING.
Before passing on to the ulterior proceedings consequent on the joinder of issue, the subject above stated requires notice, as essentially connected with the question of pleading in general; the object proposed being to place the cause in the same situation as if circumstances, occurring subsequent to the joinder of issue, had happened before that event, and had, in consequence, formed part of the original allegations.
The provision of the Code on this subject, is contained in sec. 121, and runs as follows:
$ 121. No action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, marriage, or other disability of a party, the court, on motion, at any time within one year thereafter, or afterwards, on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest,
the action shall be contined in the name of the original party; or the court may allow the person to whom the transfer is made, to be substituted in the action.
It will of course be observed that a premium is here given to diligence, and that, if the plaintiff move at once in the matter, his course is easier and simpler than that which he will be obliged to pursue, in case he delay his application for more than one year after the suit has abated. In the latter case, a supplemental complaint must be filed, and the whole course of proceeding will be precisely analogous to that on a bill of revivor and supplement under the old chancery practice. The works on that subject should therefore be referred to, and the directions there given followed, both as to the form and mode of proceeding; and likewise as to obtaining the leave of the court in the first instance.
Where new matter, occurring subsequent to the service of the original complaint, requires to be pleaded, a supplemental complaint will. in all cases, be necessary. Such new matter cannot be introduced, by way of amendment of the original pleading; and, if so introduced, will be stricken out.--Hornfager v. Hornfager, 6 How. 13.
Of course, the filing of a bill of revivor and supplement, involves, as of necessity, the service of fresh process, and implies a power to the defendant to put the fresh matter in issue in the usual form.
It will be remarked that the provision that actions shall not abate by death, marriage, disability, or transfer of interest, is only applicable to those cases where the cause of action survives or continues. The rule of “actio personalis moritur cum personā,” still holds good as to all others not falling under this description: such as actions for personal torts, and others of a like nature. It will be seen also, that transfer of interest does not, per se, create an abatement, but that the action may still be continued in the name of the original party, if thought expedient, notwithstanding such transfer. The case is otherwise as to death, marriage, or any other disability, by the occurrence of which, the person entitled to sue or to be sued becomes either non-existent, or personally incapacitated from continuing or personally defending the action as originally brought.
Of course, in almost all cases, the parties entitled to revive, will avail themselves of the short and speedy method here pointed out, in the event of the application being made within one year from abatement. The provision in question prescribes that the application for this purpose shall be made upon motion ; but, for obvious reasons, it seems expedient that such motion should be grounded upon a petition duly verified. See Rules 41 and 42. The facts necessary to induce the court to grant an order of this description being substantive facts, going directly to the right of the substituted party to sue, it is most important that the statement of those facts should appear fully and directly upon, and should, in fact, form part of the record. No