In а proceeding by motion for judgment for the balance due on a negotiable, promissory note, the plaintiff filed, with its notice of the motion, such an affidavent as may be filed with the declaration in a common law action for the recovery of money arising out of contract, under the provisiоns of sec. 46, ch. 125, serial sec. 4800, of the Code, claiming for it the same legal force, effect and virtue as it has in such common law action; and whether it has or not is the sole question raised by this writ of error.
On the day fixed by the notice for the motion, the defendants appeared and filed a demurrer to the notice. On a later day of the term, the demurrer was again interposed, the plaintiff joined therein, and the court overruled it. Thereupon a plea of nil debet, accompanied by a counter affidavit, was tendered, to the' filing of which there was an objection on the ground of insufficiency of the affidavit, which objection was sustained and the plea and affidavit rejected, and the case was continued over the objection of the plаintiff. At the next term of the court, another like plea, distinguished from the former one by the appellation, “Amended and Supplemental Plea,” unaccompanied by affidavit, was tendered and rejected and judgment rendered for the amount claimed.
The proceeding by motion is an informal one, authorized by sec. 6, eh. 121, serial sec. 4726, of the Code. Thirty days’ notice of the motion is required and there is no provision for judgment on it at rules nor otherwise than by thе court. In other words, the notice cannot, be filed at rules, like a declaration, and is not returnable to rules, and there is no provision for the motion at rules, nor elsewhere than in court on the day specified, nor for judgment otherwise than by the court. Hence, in this proceeding, there is no exprеss provision for office judgment, judgment in the clerk’s office by operation of law, as there is in procedure by common law action, as modified by provisions of ch. 125 of the Code. By virtue of sec; 46 of said chapter, such a judgment in a case
The argument submitted to sustain the claim of literal application of the provisions of sec. 46 of eh. 125 tо the proceeding authorized by sec. 6 of ch. 121 thus appears to be in contradiction of the fundamental and substantial or basic terms of the provisions themselves, since they assume the existence of an office judgment, no provision for which is made in the proceeding by motion, and prescribe its effect. The phrase in said sec. 46 selected as the basis of this argument, “which in all eases he may do,” (file an affidavit with his declaration), not only fails tо sustain or support it, but also raises an inconsistent implication. In terms, it applies to a declaration in a common law action and so impliеdly excludes from its operation bills in equity and informal statutory proceedings. TSxpressio unius est exclusio alterius. The provision in see. 7 of ch. 121, for defense to such motions “in the same mannеr and to the same extent as in actions at law, ’ ’ however, affords some basis for the contention, because, after the office judgment expressly created'in actions at law by the statute, the defense is limited in manner and extent by means of the affidavit provided for in sec. 46 of ch. 125. If this does not apply in proceedings by motion, the right of defense therein is broader in form and extent than in actions at law. To give effect to these terms, it is said they must be interpreted as having impliedly, not expressly, made the omission to plead on the day fixed for the motion the equivalent of failure to interpose а plea and counter affidavit, on the filing of the declaration, accompanied by affidavit, at
Though remedial, the statute is in derogation of the common law. It permits substitution of a summary proceeding for the formal action at law. On two well recognized grounds, derogation of the common law, and authorization of a summary proceeding, it falls under the striсt rule of construction, or, more accurately speaking, it is in derogation of the common law, because it gives a new, or cumulative, remedy, summаry in character. Such statutes are not allowed effect by construction, beyond that warranted by the express terms' thereof. Harrison v. Leach,
In conformity with these principles and conclusions, the judgment complained of will be reversed and the case remanded with direction to permit the plea of nil debet to be filed and for further proceedings.
Reversed and remanded, with directions.