183 N.W. 124 | S.D. | 1921
Lead Opinion
There was judgment dismissing the action on the merits, at plaintiff’s cost, and awarding costs to defendant, from which judgment plaintiff appeals.
The assignments of error raise the questions of sufficiency of the evidence to justify the findings of fact and conclusions of law; that the decision and judgment are against the law; errors of law occurring on the trial and excepted to by plaintiff; and error in overruling plaintiff’s motion for new trial.
It seems to be generally held to be against public policy to permit parties having no actual interest in a controversy other than costs to further prosecute and defend an action. -The provisions of the statute (section 23x7, Rev. Code 1919) authorizing the continuance of a suit, after a transfer of the subject-matter, in the name of the original party, or by the person to whom a transfer has been made, exists solely for the benefit of the transferee, and not for the benefit of the assignor. The transferee alone has the right to elect as to whether the action, after a
“The statute of California is substantially like our own. It lias been uniformly held in that state that, when the subject matter of a pending action is transferred, it is the right of the transferee to prosecute and defend that action either in the name •of the original party, or to request a substitution, and further, that the assignor pendente lite is, after the assignment, divested •of further authority to control the action.”
The decisions in the following cases sustain this rule: Walker v. Felt, 54 Cal. 386; Crescent Co. v. Montgomery, 124 Cal. 142, 56 Pac. 797; Card v. Bird, 10 Paige (N. Y.) 426; Poundstone v. Baldwin, 145 Ind. 139, 44 N. E. 191; Moore v. Jenks, 173 Ill. 157, 50 N. E. 698; Studabaker v. Markley, 7 Ind. App. 368, 34 N. E. 606; Ried v. Vanderheyden, 5 Cow. (N. Y.) 719; Tuffree v. Stearns Ranchos Co., 124 Cal. 306, 57 Pac. 69; Ashby v. Winston, 26 Mo. 210; Hirshfeld v. Fitzgerald, 157 N. Y. 166, 51 N. E. 997, 46 L. R. A. 839; 30 Cyc. 43.
The only possible interest the appellant could have in the pending action is in relation to costs that the trial court may erroneously have adjudged against her. Appellant might possibly have appealed from the taxation of costs and from that part of judgment which alone related to costs. But that is not what the appellant is seeking by this appeal. Appellant is here seeking a
By the sheriff’s deed, all the right, title, and interest of the appellant in and to the subject-matter of this action became vested in the said 'First National Bank upon the issuance of said sheriff’s deed, and which bank thereafter had the right to carry on this suit against the original plaintiff, or in its own name as a substituted party. After the issuance of said sheriff’s deed, this appellant lost all right to control or take part in the procedure of this action. Thereafter the said! bank, instead of prosecuting the suit against the original defendant, procured from her a deed of all her right, title, and interest in and to the subject-matter of this action, thereby completely uniting in said bank the opposing interest in the said subject-matter. Both the original opposing parties to this suit, pendente lite, transferred all their respective interest to the First National Bank. The said bank by such transfers became both plaintiff and defendant in the real and actual interest in the litigation, and had the right, if the case could be carried on at all, to carry on the same in the name of the original parties without actually having itself substituted as a party to the suit. Under the authorities cited, the said bank had the right to control the procedure on both sides of this legal controversy. Under these circumstances it is against public policy and is a travesty on legal procedure to permit the further carry
The appellant, not. being a party in interest, has no right to object to or appeal from this judgment on the merits. The judgment and order appealed from are affirmed. (dissenting.) This action, as originally
Dissenting Opinion
started, presented as the sole issue the validity of a tax -deed held by defendants Howard and Hedger. By supplemental answer, Christian became' defendant, and claimed as the grantee of the other defendants. The trial court erroneously held the tax deed valid. Upon appeal we reversed such holding, and held the tax deed null and void, and remanded the -case to the circuit court.
'My colleagues say, “There is no such thing known to the law of pleading as a supplementary general denial.” Certainly there is not. A supplemental answer is allowed under § 2381, R. C. 1919, only, and can be allowed only for the purpose of presenting “new matter” and “new matter” can never be proven under a general denial; a supplemental answer could never be in th.e form of a general denial, any more than any other allegation in confession and avoidance.
In Raynor v. Timerson, 46 Barb. (N. Y.) 518., the court was considering an appeal in an ejectment action wherein the defendant had pleaded a general denial. It was held that under a general denial .the defendant may show title out of the plaintiff at the commencement of the action.
In Johnson v. Briscoe, 92 Ind. 367, the court said:
“The only question presented by the petition is this: In air action of ejectment, can the defendant, under the general denial, avail himself of a defense not existing at the commencement of the suit?
*225 “It was always a rule that under the original pleadings suits are determined upon the 'facts existing at their commencement.
, “Therefore, in an action of ejectment at common law, it was held in Jackson v. Rice, 7 Johns. 194, that matter of defense occurring, after suit brought was not available.
“The code has not changed the law in this respect. In Musselman v. Manly, 42 Ind. 462, this court said: ‘Nor can a defendant set up a defense that did not exist at the commencement of the action.’ See, also, Maxwell v. Boyne,, 36 Ind. 120; Carr v. Ellis, 37 Ind. 465; Moore v. Worley, 24 Ind. 81.
“The code declares that a defendant, in an action to recover real estate, may give in evidence every defense that he may have, either legal or equitable. R. S. 1881, § 1055. But this'does not change the rule under consideration, the defense to be thus given in evidence under the general denial must still be a defense existing at the commencement of the action. Matter of defense arisr ing after suit brought is available only under section 399, R. S'. i'88i, which provides that the court, on motion, ‘may * * * -allow supplemental pleadings, showing facts .which occurred after the former pleadings were filed.’ This is a general- provision governing all suits. If the defendant had a defense ■ which arose after suit brought, he should have applied to the court for .leave to file such a supplemental pleading, analogous to the old plea of puis darrein continuance, and under section 399, ..supra, .that pleading could not have been a general denial, but-must have been a- special plea ‘showing facts which occurred after ;the former pleadings were filed.’” . ■ ...
In McMinn v. O’Connor, 27 Cal. 238, We find a case whéré'a defendant, under a general denial, offered in evidence a' tax deed to himself, but of date subsequent to'bringing of 'that'-action.'. It was objected to “on the ground that it could'not''be-given-'in evidence without' pleading it by supplemental answer.” In sus-taining the exclusion'of this evidence, the court said:
“Facts which occur subsequent tp filing an answer materially affecting the rights of the respective parties to the advantage of the defendant, and which, if in evidence, would necessarily change the result to the detriment of the .plaintiff, should be embodied in*226 a supplemental answer to authorize evidence of them without the plaintiff’s consent.” Van Maren v. Johnson, 15 Cal. 311.
A case on all fours with this so far as concerns the introduction in evidence of the sheriffs deed is the case of Moss v. Shear, 30 Cal. 467. We quote from the decision:
“The defendant, for the purpose of showing that the plaintiff’s right of possession had terminated since the commencement of the action, offered in evidence a certified copy of the record of a deed, dated April 25, 1862, purporting to convey the premises in question from the plaintiff to one J. B. Bayerque; to the introduction of which plaintiff objected, on the grounds, among others, that the deed having been executed since the commencement of the action, it is inadmissible under the pleadings; that it is immaterial and irrelevant to any issue joined.”
“The rule has long been established in this state that mere denials only put in issue the allegations of the complaint, and that new matter must be specially pleaded. Piercy v. Sabin, 10 Cal. 22; Glazer v. Clift, 10 Cal. 304; Coles v. Soulsby, 21 Cal. 50. In the last case, Mr. Chief Justice 'Field says: ‘In our practice, a denial, whether general or special, only puts in issue the allegations of the complaint. * * * New matter must be specially pleaded — and whatever admits that a cause of action, as stated in the complaint, once existed, but at the same time avoids it — that is, shows that it has ceased to exist — is new matter. It is that matter which the defendant must affirmatively establish.’ This principle, in one form or another, has been repeated in many other cases, and it clearly applies to the case at har. This defense assumes that, at the commencement of the action, the plaintiff had the title and the right of possession, but that his right has since terminated by his own act in conveying the land, and consequently the right of possession, to Bayerque. The. defense -itself arose since the institution of the suit. As it was not made to appear by the plaintiff, it was necessary for the defendant to show it affirmatively. Had the issue been made by the answer, the burden of proof would have been on the defendant. Clearly, under our system, it is not admissible under the mere denials .of the allegations in the complaint. Such is clearly the understanding of ,our former Chief Justice, Field, for in the case of Hardy v. Johnson, 1 Wall. 374, in the Supreme Court of the United*227 States — a case precisely similar in principle, which went up from the state of California — he so expressly held, all the Justices concurring. He says: ‘The complaint must allege the possession or seisin of the premises, or of some estate therein by the plaintiff, on some day to be stated, the subsequent entry of the defendant thereon, and his withholding the same from the plaintiff. A denial of its allegations puts in issue the title of the plaintiff at the date alleged, or at least his title at the commencement of the action. Any title acquired subsequent to the issue thus joined must be set up by a supplemental answer in the nature of a plea puis darrein continuance. No permission to file such supplemental answer was applied for, and there was no error in excluding the title subsequently acquired under the pleadings as they stood.”
It seems, therefore, clear that the trial court erred in admitting the deed in evidence.
Defendant could no more prove, as a matter of defense, that she had conveyed her claimed interest. It follows that, under the issues presented by the pleadings, plaintiff was entitled to findings and judgment.
To summarize my views: The fact that these interests had merged was not provable as a matter of defense under the pleadings, and therefore, rtnder the pleadings and the competent evidence, plaintiff was entitled to the judgment she asked for. Such judgment (quieting title as against the tax deed) would have redounded to the benefit of the holder of the foreclosure deed if such foreclosure did, in fact, cut off plaintiff’s rights in the land. As soon as defendant supposed there had been a merger of interests, she might have brought this matter to plaintiff’s attention, and have taken steps to stop further costs by moving the dismissal of the action because there remained but a moot question. On such a motion, the evidence of the facts showing merger would have been competent. On the hearing of the motion, the court could have dismissed the action with costs in favor of plaintiff. If plaintiff resisted such motion on the ground that she had not lost her rights through the foreclosure, the defendant, through proper supplemental answer, could have pleaded title in the third party, and, if successful on the trial, plaintiff would have been liable for the extra costs resulting from her opposition to the motion.