This case was originally brought by the appellee, Crolot, against the appellant, Maloy, before a justice of the peace of Santa Fe county, in the first judicial district, by attachment. The amount clаimed as due him from the defendant is ninety-nine dollars.
No property of the appellant seems to have been attached, but one John Faber was summoned as garnishee, who appeared and aсknowledged an indebtedness to the ajipellant in the sum of thirteen dollars. Both parties appeared before the justice. There is no record before this court showing that any pleadings were put in before the justice by either party, either oral or otherwise, except the affidavit of appellee for attachment, stating, among other things, that the appellant, Thomas Maloy, owes him, after allоwing the just credits and offsets, the sum of ninety-nine dollars, which debt arose upon money which the said Thomas received belonging to the said Seferino Crolot, and a written plea of the appellant, not traversing thе affidavit as to the alleged cause of action, constituting the indebtedness, but denying the statements in the affidavit as to the specific grounds for the attachment.
A jury having been waived, the 'cause was tried beforе the justice, who found and entered judgment in favor of the appellee, in the sum of sixty dollars, and costs.
From this judgment an appeal was taken to 'the district court for the first judicial district and county of Santa Fe, wherе the cause was tried de novo, before a jury, who rendered a verdict for appellee in the sum of ninety-nine dollars, and judgment for him in that sum and costs was entered accordingly. The case is here on appeal from that judgment.
The errors assigned are: First. There is no evidence to sustain the plaintiff’s claim. Second. The court below erred in ovenmling the motion for a new trial.'
The law of this territory governing procеedings in civil actions before justices of the peace specifically provide how-parties may form an issue to be tried. Section 23 of the act relating to justices of the peace, provides as follows : “Upon return of any process, each party may plead orally, but shall give a bill of particulars of his demand, if required by the justice or opposite party ”: Prince’s ed., Laws N. M., 89.
Section 13 of thе same act provides that, “ every justice .shall keep a docket,” in which he shall enter among other things, “ a brief statement of the nature of the plaintiff’s demand, and the amount claimed.” Id., 88.
Section 36 of the same act provides for impanelling a jury to try the cause “ after issue joined.” Id., 92.
While the statute provides that the pleadings may be oral, and that the plaintiff’s cause of action shall be entered in the docket of the justice by a brief statement thereof, yet this is directory merely, and does not preclude the filing of written pleadings, setting out a cause of action by the plaintiff, and a denial thereof, or statemеnt of any other defense by the defendant.
Though strict formality is not required in pleadings before a justice of the peace, and they are to be treated with great liberality with a view to substantial justice between the parties, yet the substance of an issue in some way must be formed : Phillips v. Bridges,
There is nothing, in the record before us showing that in thе court below there were any allegations of the appellee on file, or any entry in the justice’s docket, showing that he had a cause of action, except that already stated as a рart of his affidavit for an attachment made before the justice at the inception of the suit, to wit: a money demand of ninety-nine dollars, belonging to the appellee, and had and received by the aрpellant. This, though nowhere appearing in the proceedings, except in the affidavit, was a sufficient declaration on the part of the appellee, to authorize a trial, especially as no objection to its sufficiency was interposed by the appellant. If the appellant considered that he was not sufficiently apprised of the cause of action, he might have demanded а bill of particulars under the statute, or he might have demurred.
The evidence is all made a part of the record by a bill of exceptions, and is before us.
The evidence discloses the fact that the cause of action that was really tided was a demand of ninety-nine dollars for work and labor performed by the appellee for the appellant, and at his instance and request. There is no evidencе whatever to support the claim for money had and received. Is this good ground for reversing the judgment if there is sufficient evidence of work and labor performed by the appellee for .the appellant, and unpaid for, to sustain the verdict, had that been the issue ?
We are of the opinion that it is not. The conduct of both parties during the whole trial was such as to amount to an abandonment, by mutual consent, of the original issue as to money had and received, and to the substitution of the issue for work and labor. This might be done though there were no formal pleadings, oral or written, to that effect. The appellant raised no objection to the evidence introduced by the appellee to support the claim for work and labor, but instead, thereof, introduced evidence in rebuttal upon that issue, and no other. J3y this, he must be сonsidered as having accepted that issue, and as having waived any objections he might have urged against the competency of appellee’s evidence, to sustain his original claim for money had and received. It is clear, however, that had the appellant stood upon his rights and objected to such evidence as not being pertinent to the issue, and the same had been overruled, and the appellant forced to trial without any amendment of the pleadings, it would have been error and good ground for reversing the judgment.
The case of Allen v. Nichols, Jr.,
On this point the court said, “ Where evidence is received or a witness admitted without'objection, we must presume that all grounds of exception are waived, and having been waived, the party cannot afterward object.”
. The court, in that case, toоk occasion further to say that, “ In a justice’s court there are no pleadings, and it has been held by this court that the plaintiff is not required even to file an account in a suit before a justice of the peace; and on bringing an action in that court, if the plaintiff proves any grounds of recovery, he is entitled to a judgment, if the justice of the peace has jurisdiction of the subject matter.” This general doctrine thus laid dоwn by the supreme court of Illinois is too broad to be applied to suits before justices of the peace in this territory under our present statute, except in cases where evidence is introduced withоut objection in reference to causes of action not embraced in any pleadings, but we quote the rule established in that state to show to what extent the courts have gone in their liberal constructiоn of pleadings and proceedings in justice’s courts.
The evidence in the case now under consideration disclosing, as it does, the issue that was actually tried by the implied assent of the parties, and the samе being a part of the record, the appellant is well protected against any future prosecution for the same cause. The testimony of the appellee in his own behalf, if true, is sufficient to sustain the verdict.
Such evidence is flatly contradicted by the testimony of the appellant, but it was the exclusive province of the jury to determine the weight and credibility of all the testimony. Such determination is not subject to review by this court.
The record discloses no error.
Judgment affirmed.