35 S.C. 165 | S.C. | 1892
Lead Opinion
The opinion of the court was delivered by
This was an action on a note, and the plaintiff,in his complaint alleged, first, the execution by defendants to the plaintiff of the note sued upon, setting out a copy thereof. Second, “that the plaintiff is still the legal owner and holder thereof, and that no part thereof has been paid, and there is still due and owing thereon” the amount mentioned in the note, with interest at the rate therein stipulated for. The defendants answered, admitting the execution of the note, and setting up as a defence : 1st. “That there was no consideration for the said note, but the same was given by mistake.” 2nd. Setting out the circumstances under which the note wras given, to wit, for a balance supposed to be due on an old note, upon which a large amount was paid in cash, leaving, as was supposed, a balance still due thereon to the amount for which the note in question was given, but that an accurate calculation would show that there was in fact no balance due. Upon reading the pleadings counsel for defendants claimed the right to open and reply, upon the ground that they had admitted the plaintiff’s cause of action as set forth in the complaint, and relied only on the affirmative defence set up in their answer. This claim was disallowed by the Circuit Judge, and the case proceeded to trial and judgment in favor of the plaintiff. The defendants appeal, alleging error in the refusal of their motion to be allowed to open and reply.
The rule of court now' of force being thus practically the same as before, decisions made under the former rule are applicable now; and, with a view to settle this point, we propose to review such cases upon the subject as we have been able to find in addition to the cases cited by counsel. The first is Singleton ads. Millet (1 Nott & McC., 355), in which the action was trespass quare clausum fre.git,, to which the defendants pleaded liberum tenementum, and the plaintiff replied de injuria sua propria absque tali causa, and issue was joined thereon. Evidence was given on both sides as to the title, and the defendants claimed
In Administrators of Gray v. Cottrell (1 Hill, 38), the action was debt on a sifigle bill — plea general issue and unsoundness of a negro part of the consideration of the bill. On the trial defendant admitted the execution of the single bill, and the real controversy w;as as to the soundness of the negro, in the course of which a question as to the competency of certain testimony was raised. Held, that the defendant was not entitled to reply, doubtless because (although no reason is given) the defendant’s admission at the trial of the execution of the single bill was not an admission of record, for such seems to be the construction put upon that case by Evans, J., in the case of Johnson v. Wideman, to be cited.
In Anonymous (1 Hill, 251), the action was for slander, to which the general issue was pleaded, as well as a plea of justification, which was put in by consent, provided the plea of the general issue was allowed to remain. The defendant’s claim to opon and reply was disallowmd, because, as long as the plea of the general issue remained, it could not be said that the defendant had admitted plaintiff’s case of record, the court saying: ‘‘The defendant’s right to the general reply in evidence and the reply in argument depended on the question whether he had, by his pleading, made himself plaintiff' in all the issues before the court.”
In Johnson v. Wideman (Dudley, 325), the action was upon a note to which the general issue was pleaded, though the real defence seemed to be that the negro for which the note was given was utterly worthless, and that the representations made by the plaintiff at the time of the sale to the contrary were false, and known so to bo by the plaintiff. Some days before the trial defendant gave plaintiff notice that he would admit on the trial the plaintiff’s cause of action, upon which the Circuit Judge held that defendant was entitled to open and reply. On appeal this ruling was reversed solely upon the ground that the defendant had not admitted on the record plaintiff’s case.
In Moses v. Gatewood (5 Rich., 234), the action was slander,
In Brown v. Kirkpatrick (5 S. C., 267), the action was on a money demand to recover the amount of the proceeds of sale of certain goods sold by defendants for the account of plaintiff. The defendants answered, admitting all of the allegations of the complaint, and, as an affirmative defence, set up a counter-claim for the amount due them at the time of such sale for advances previously made to the plaintiff. Held, that defendants, having by their pleadings admitted the plaintiff's cause of'action, and relying solely on their affirmative defence set up as a counterclaim, wrnre entitled to open and reply. We do not find anything in that case to warrant the idea contended for by counsel for respondent, that the affirmative defence must bo new matter in the sense that it is in no way connected with the subject matter constituting the plaintiff’s cause of action. The whole point of that case, as it seems to us, is, that the defendants, having admitted by their pleadings all the facts necessary to constitute the plaintiff's cause of action, thus superseding the necessity for plaintiff to offer any evidence, and relying solely for their defence upon affirmative allegations which it was necessary for them to prove, they thus became the actors, and were, therefore, entitled to open and reply.
In Kennedy v. Moore (17 S. C., 464), the action was on a note, a copy of which was set out in the complaint. The defendant answered, admitting that he did execute a note somewhat similar to that set out in the complaint, but denied that the note
In Boyce v. Lake (17 S. C., 481), the action was on a note originally given to Chancellor Johnstone, which had, by successive transfers, come to the plaintiff. The defendants answered, admitting the execution of the note, but qualifying that admission by a denial of the plaintiff’s right to sue, on the ground that she was a lunatic. Held, that defendant was not entitled to open and reply, for the reason, to use the language of the Chief Justice: “The 49th (a misprint for 59th) rule of the Circuit Court entitles the defendant to open and reply when he admits the plaintiff’s whole case; when the admission is so full as upon that alone, in the absence of other defence, the plaintiff would be entitled to judgment. It will be observed that the admission here was not of this full character,” because, as might have been added, in order to entitle a plaintiff to recover, he must not only have a cause of action, but also a right of action.
In McConnell v. Kitchens (20 S. C., 430), the action was upon a contract in writing under seal, the terms of which the complaint purported to set forth^ and the defendant answered, in effect, denying that he had executed such a contract as that set forth in the complaint, but that the contract which he did execute contained other stipulations than those found in the contract described in the complaint, and it was very properly held that defendant was not entitled to open and reply, for he had not admitted the plaintiff’s case as stated in the complaint, and hence it was necessary for the plaintiff to prove his case.
Recurring, now, to the case of Burckhalter v. Coward (16 S. C., 435), which was inadvertently passed over in pursuing the
The last case upon the subject, so far as we are informed, is Sanders v. Sanders, 30 S. C., 207. In that case the action was on a note, and the plaintiff, instead of contenting himself with making the allegations usual in such an action, went on to allege that no part of said note had been paid, except the sum of $174. The defendant answered, admitting all of the allegations of the complaint, except that as to the amount stated to have been paid; as to which he alleged that the amount was much larger than that stated in the complaint, and more that sufficient to pay up the note ; and then, as a second defence, set up a coiinter claim for the amount thus alleged to have been over-paid, as well as for another demand, which need not be stated. It was held that defendant was not entitled to open and reply, because the defendant had not, by his pleading, admitted the plaintiff’s whole case. The plaintiff' sued on a note, upon which he alleged only a certain amount had been paid, and if the defendant had admitted the allegations as thus made, there can be no doubt that, upon the record, as it would thus have stood, the plaintiff, in the absence of any other defence, would have been entitled to judgment for the balance due on the note after deducting the payment as stated in the complaint. But as the defendant did not admit the allegations as made in the complaint, but only a part of them, no such consequence would follow from the pleadings. See McElwee v. Hutchinson, 10 S. C., 436.
It seems to us that the true rule to be deduced from all these authorities is, that where the defendant, by his pleadings, admits the plaintiff’s cause of action, as stated in the complaint, and relies solely upon an affirmative defence, based upon the facts stated in his answer, he is then entitled to open and reply, as the
As to the allegation that the whole amount is still due, that is more a statement of a conclusion of law than an allegation of fact. It is, therefore, a mistake to say, as contended for by counsel for respondent, that if the case had gone to the jury simply upon the pleadings, the verdict would necessarily have been in favor of the defendants, for that is based upon the unfounded assumption that in such a case the allegations of both complaint and answer would be taken as true. On the contrary,.
Under this view of the ease the questions as to the taxation of costs cannot arise, and, indeed, cannot properly be considered.
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.
Dissenting Opinion
dissenting. The practice as to the right to open and reply should be clearly settled. The rule is as follows: the plaintiff being the actor, has as a matter of course, the right to open and reply, “unless the defendant admits his cause by the pleadings, and takes upon himself the burden of proof.” That is to say, the plaintiff’s whole cause, so fully as to entitle the plaintiff, in the absence of affirmative defence, to the judgment, &c. See Boyce v. Lake, 17 S. C., 486 ; Sanders v. Sanders, 30 Id., 208.
Was the plaintiff’s whole case so admitted in the pleadings here, as to entitle him, without proof, to the verdict ? It seems to me, that must depend upon the enquiry, whether the allegation that “no part of the note had been paid, but was still due and owing,” was a substantive allegation, distinct from that as to the mere execution of the note. The execution of the note was “admitted” in the answer, but the other allegation above stated was not admitted. Indeed, its admission would have been inconsistent with the whole defence. On the contrary, the money allegation was, at least, impliedly denied by the defence of failure of consideration. Then was the money allegation a mere statement of legal liability, as an incident of the note? or a distinct allegation of fact in the plaintiff’s case; and if not admitted, necessary to be proved ? To say that one is “indebted” to another in a given amount is not merely expressing a conclusion of law, but alleging a fact. Miller v. George, 30 S. C., 526.
In this respect, it is difficult to distinguish the case from that
But it is said that the money allegation, if regarded as material, is not denied by the auswer, and would, therefore, be deemed to be “admitted” under section 189 of the Code, which declares, “Every material allegation of the complaint, not controverted by the answer, &c., shall, for the purposes of the action, be taken as true,” &c. I cannot see that this section should have anything to do with the question here. The rule of court declares that the defendant shall have the right to reply, when he admits the plaintiff’s whole cause of action ; while the section of the Code referred to makes a provision of general law as to what proofs need not, under certain circumstances, be formally offered at the trial in any case. The two provisions have very different objects, and are wholly disconnected. It is said, how'ever, that
Judgment reversed.
