13 Wash. 490 | Wash. | 1896
Lead Opinion
The opinion of the court was delivered by
This action was brought upon a judgment stated in the original complaint to have been rendered in a circuit court of tbe state of New Jersey. Defendant denied the existence of the judgment and alleged:
“That any judgment ever obtained as set out in said complaint, or any judgment ever obtained by plaintiff againt this defendant (if such judgment ever was obtained), had been fully paid and satisfied.”
He also alleged certain facts by way of counterclaim. It appeared from the transcript of the judgment offered in evidence that it was rendered in the supreme court of the State of New Jersey instead of
Complaint is made by the respondent of this action by the court, but it was not made to appear that the defendant was in any manner misled or prejudiced by such amendment, and even if respondent was in a situation to take advantage of any error made by the court, his rights were not so affected that he would be entitled to any relief. Before the case was submitted to the jury, it was stated by the defendant or his counsel that he at this time withdrew his denials, and admitted:
“ That there is a judgment roll against us, and that it is a proper exemplification of the judgment rendered against us in the supreme court of New Jersey, and we now demand the opening and closing of the case' before the jury.”
After this admission had been made there were but two questions to be submitted to the jury; one, as to whether or not the judgment had been paid, and the other as to the counterclaim pleaded by the defendant. Under the latter, the defendant claimed only about $500, and the amount of the judgment was something over $2,000; hence the verdict of the jury finding generally for the defendant could not have been rendered unless it was found that the judgment had been paid. Did the testimony warrant this finding on the part of the jury? The answer of the defendant set up generally the fact that the judgment had been paid, but did not state how it had been paid. The proof tended to show that payment was made, not in money, but by the delivery to the plaintiff on behalf of the defendant, of a certain chose in action. Appellant claims that under the general plea of payment,
It follows that there was no testimony to sustain the verdict of the jury, and that the judgment rendered thereon must be reversed. If we were to hold that the admission of the respondent as to the judgment had been made for any other purpose than that of the trial in which it was made, it might be our duty to direct a judgment in favor of the plaintiff, but we are not satisfied that such admission should have force against the respondent excepting for the purpose of deciding questions involved in the trial in which it was made; hence the order will be that' the judgment be reversed and the cause remanded for a new trial.
Dunbár and Anders, JJ., concur.
Dissenting Opinion
(dissenting).—In my .opinion there was competent evidence tending to support the verdict, and the order denying a new trial should be affirmed.