197 N.W. 868 | N.D. | 1924
This is an appeal from the district court of Roster county. The facts are as follorvs: In the fall of 1921, the defendant' hired a team of horses from the plaintiff, using the same for twelve days at the agreed compensation of $2 per day. The defendant paid $5 on this account. Thereafter and on or about September 15, 1922, the defendant was adjudicated a bankrupt in the United States district court for the district of North Dakota and was discharged in bankruptcy prior to the trial of the action.
The action was commenced in justice court by summons issued therein in the ordinary form. The cause of action described in the summons is for the hire of the team in the fall of 1921; to this cause, as thus pleaded in the summons, the defendant answered, alleging the bankruptcy proceedings and a discharge from the obligation to pay the debt. The plaintiff replied in justice court, alleging a new promise to pay. The defendant made no motion to strike the reply, nor did he in any manner object thereto. In the justice court, judgment was entered in favor of the plaintiff in the sum of $19, and costs. The defendant appealed to the district court and the case came to trial on March 5, 1923. A judgment was entered for the plaintiff in the sum of $19 and costs. The defendant appeals.
Before the trial began in the district court, the defendant made a motion to strike the reply that had been interposed in the justice court. This motion was granted. Thereafter and on the 9th of February, 1923, a new complaint was served on the defendant and the action was tried upon this complaint. The plaintiff alleged therein the agreement of hire in the fall of 1921, the discharge in bankruptcy and the new promise to pay the indebtedness after such discharge.
The defendant’s attorney took the deposition of the defendant in the state of Iowa. Notice of tba taking thereof was properly served and
The defendant and appellant assigns numerous errors, which may be grouped under the following heads: First, that the trial court erred in permitting the complaint to be filed, setting up, as the appellant contends, two causes of action, one upon the original claim, which was discharged in bankruptcy, and the other upon the new promise made subsequent to the discharge. Second, that the court erred in granting the motion of tho plaintiff to suppress the deposition of the defendant upon the ground that it was not property authenticated; and third, that the court erred in denying defendant’s motion for a continuance so as to enable him to take the deposition of defendant anew.
The defendant contends that the plaintiff was permitted to insert by amendment a new cause of action; that the complaint realty alleges two causes of action, one upon the original claim,- the other upon the promise subsequent to the discharge in bankruptcy. The objection raises the question, what is the cause of action?
Upon the question of whether the action should be brought on the new promise or on the original claim, or whether it may be brought on either, the authorities are not in harmony. In 2 Bates, New PI. Pr. Parties & Forms, 1923 p. 1069, it is said that the “weight of authority allows the action to be brought on the original claim, either by considering the discharge as a suspension of the remedy, or in one or two cases by considering the new promise as a revivor of the- original claim. In these cases, a reply of new promise is not a departure.” The same author continues: “Other courts, regarding the discharge as a cancellation of the debt and hence not like a bar by limitation, confine the right of action to the new promise.” It appears further from this author that in a few jurisdictions the action may be brought
If we have in mind the legal effect of a discharge in bankruptcy, the objection we are considering loses all its force.
“The only effect of a discharge is to suspend the right Of action for a debt against the debtor personally. It does not annul the original debt or liability of the debtor. The remedy upon the debt, and the legal, but not the moral, obligation to pay is at an end. The obligation itself is not cancelled.
“Since the discharge is personal to the bankrupt, he may waive it and, since it does not destroy the debt but merely releases him from liability, that is, removes the legal obligation to pay the debt, leaving the moral obligation unaffected, such moral obligation is a sufficient consideration to support a new promise and, if the debtor makes such promise, it may bo made the foundation of a suit.- The plaintiffishould declare on the original promise, or debt, the new promise being a defense to a plea of discharge; otherwise there would be no consideration to support the new promise, if the original debt was destroyed by the discharge.” Brandenburg, Bank. 4th ed. § 153S.
“A discharge goes to the remedy; it does not cancel the debt. It destroys the remedy on all debts except, those falling within the terms of this section.” 1 Collier, Bankr. 13th ed. p. 596.
Such being the effect of a discharge, is there any logical reason why the plaintiff may not plead and rely on the original claim? We think not. The defendant may or may not assert the defense of discharge in bankruptcy; he may recognize the force of the moral obligation to pay and elect not to set up the discharge in bar. If he sets up such defense in his answer, the issue is framed. The defense of discharge in bankruptcy is in the nature of a plea of confession and avoidance. Under our theory of code pleading, all matters of defense set up in the answer are deemed controverted without a reply, except allegations of new matter constituting a counterclaim. Comp. Laws, 1913, §§ 7467 — 7477. When the answer contains new? matter by way of avoidance, the court may require a reply to such new? matter, but none is necessary unless ordered or required by the court. It seems that the plaintiff may offer any evidence which tends to defeat the affirmative defenses relied on by the defendant to defeat plaintiff’s
There is another reason why the defendant cannot maintain the ■objection that the complaint improperly unites two, or more, causes of action in violation of § 7455, Comp. Laws, 1913. This objection was not raised by demurrer upon that ground, as contemplated by §
It seems clear that the deposition was not authenticated as required by § 7902, Comp. Laws, 1913 and was therefore properly suppressed. That section provides that if the officer before whom the deposition is taken in the foreign state has no official seal, the deposition shall be authenticated either by parol proof in court, or the official certificate and seal of any secretary or other officer of the state keeping the great seal thereof, or of a clerk or prothonotary of any court having a seal, attesting that such justice or other officer was, at the time when the deposition was taken, authorized to take the same. The statute is mandatory in this regard.
The granting or refusing of a continuance is largely in the discretion of the trial court. This case involved the paltry sum of $19; the defendant had loft the state; it was his own testimony that was taken by deposition. The deposition was taken on the 17th day of February, 1923, and written objections thereto filed and brought to the attention of the court and sustained before the trial commenced. It would seem that counsel for defendant had opportunity, before the trial on March 5, 1923, to examine the deposition and to satisfy himself that it was in proper form and had been taken in conformity with the statutes. The record shows that he stated to the court that he did not examine the deposition before the trial because he assumed that the deposition ■was properly authenticated and correctly taken in all particulars. We are not aware of any presumption in favor of the correctness of procedure in taking depositions in another state. We are not disposed to disturb the ruling of the trial court in this regard.
It is contended by the defendant that there is no evidence of a new promise sufficient to support a judgment and that the court erred in
The judgment of the trial court is affirmed.