Colby v. Reams

109 Va. 308 | Va. | 1909

Harrison, J.,

delivered the opinion of the court.

The declaration in this case avers that the defendant wrongfully manufactured into lumber and disposed of certain trees and logs belonging to the plaintiff, and committed other acts of trespass on his premises. This action of trespass on the case was brought to recover of the defendant the damages claimed to have been sustained by reason of these alleged unlawful acts. There was a verdict and judgment for the defendant, which is now before us for review.

Bill of exception Vo. 9, which was intended to make the evidence a part of the record, is not signed by the judge of the circuit court. The evidence is not a part of the record unless made so by a proper bill of exceptions. It is not a bill of exception, and fails of its purpose, unless it is authenticated by the signature of the judge presiding at the trial. Code, sec. 3385. Blackwood Coal Co. v. James, 107 Va. 656, 60 S. E. 90, 1 Va. App. 732.

In this situation of the record there are but two assignments of erfe^^t we need notice.

The record fails to show that the defendant entered any plea in this case; and it shows that at the April term, 1907, the court, on motion of the plaintiff, entered an order requiring the defendant to tile a statement of his grounds of defense on or before ten days prior to the next succeeding- term. This order was not obeyed, no statement of the grounds of defense being filed at any time. Bill of exception ISTo. 3 shows that, at the trial, when the defendant offered to introduce his evidence, the plaintiff objected to its introduction because the order of the court requiring the grounds of defense to be filed had not been complied with. The court overruled this objection, and permitted the defendant to introduce his evidence, as stated, under the general issue.

This was error. The general rule applying to all actions will not sustain a judgment given upon a verdict rendered as upon the trial of an issue when no issue has been joined. Issue must first be joined on the pleadings. Preston v. Salem Imp. Co., 91 Va. 583, 22 S. E. 486.

A state of facts might, however, arise upon which the plaintiff would be estopped to object in this court, for the first time, that there had been no formal joinder of issue upon the pleadings. See Deatrick v. Ins. Co., 107 Va. 602, 59 S. E. 489, 1. Va. App. 670. But no such conditions exist in the case at bar, which is governed by the general rule already mentioned. Here the plaintiff did all that he could do. He demanded a statement of the grounds of defense relied on by the defendant, and the court entered an order requiring such a statement to be filed on or before ten days prior to the next succeeding term of the court. This order the defendant did not comply with, and when the plaintiff, for that reason, objected to the introduction of any evidence by the defendant, he was told that the evidence might be introduced under the general issue, when no plea of the general issue had been entered of record. Tf, however, the general issue had been pleaded, the defendant coxxld not have introduced his evidence xxxxder it. plea? iii this case, would have been “not guilty,” which would have given the plaintiff no notice of the character of the defense.

Section 3249 of the Code provides that, when a statement of the grounds of defense is ordered, and the order is not complied with, the court may, at the trial, exclude evidence of any matter not described in the pleading so plainly as to give the adverse party notice of its character. The object of this section is to give the adverse party full notice of the character of the plaintiff’s claim or the defendant’s defense. Columbia Accident Ass. v. Rockey, 93 Va. 678, 25 S. E. 1009; Richmond v. Leaker, 99 Va. 7, 37 S. E. 348; Tidewater, &c. Co. v. Scott, 105 Va. 165, 52 S. E. 835, 115 Am. St. Rep. 864.

In the case at bar, the plaintiff was furnished with no notice, and under the terms of the statute the defendant’s evidence should have been excluded.

Bill of exceptions ISTo. 4 shows that at the trial the defendant, in his direct examination, testified that certain logs and felled trees, the subject of controversy, were worth only $75.00. On cross-examination, for the purpose of impeaching him and showing that he had made a different statement under oath about the same matter, the plaintiff read to the defendant, who was testifying in his own behalf, a portion of his answer in a certain chancery suit, and asked him to explain it. On his redirect examination, the defendant was permitted, over the objection of the plaintiff, to introduce in evidence the whole of said answer. Eo part of the answer in question was admissible on the re-direct examination of the defendant except that which related to the value of the logs and felled trees in controversy.

The law is stated in Greenleaf on Ev. (15th ed.), Vol. 1, sec. 467, as follows: “Proof of a detached statement, made by a witness at a former time, does not authorize proof, by the party calling that witness, of all that he said at the same time, but only of so much as can be in some way connected with the statement proved. Therefore, where a witness has been cross-examined as to what the plaintiff said in a particular conversation, it was held that he could not be re-examined as to the other assertions, made by the plaintiff in the same conversation, but not connected with the assertions to which the cross-examination related, although the assertions as to which it was proposed to re-examine him were connected with the subject matter of the suit.”

The whole of the defendant’s ánswer in the chancery suit is not before us, and, therefore, we are unable to say whether or not it all related to the value of the logs and felled trees in controversy. If, however, the question should arise on another trial, whát has been said will be a guide to its proper solution.

The judgment complained of must be reversed, the verdict of the jury set aside, and a new trial granted.

Reversed.