Haag v. Burns, 22 S.D. 51

22 S.D. 51 | S.D. | 1908

FULLER J.

That the circuit court in which this action to recover $14.25 was tried de novo- on appeal from a justice of the peace was without jurisdiction, for the reason, that plaintiff’s notice of appeal was fatally defective, is the first proposition presented and relied upon as ground for reversing a judgment in favor of plaintiff and the order denying defendant’s motion for a new trial. The justice court judgment recites that, “after hearing the argument and considering the testimony, I hereby order and decree judgment in favor of the defendant and against the plaintiff for a dismissal of the action, and hereby render judgment against, the plaintiff for costs in this action; the same being in the sum of $14.60.” Omitting the name of the court, parties, and venue, .the notice of appeal made the basis of an unsuccessful motion in circuit court to dismiss the appeal reads as follows: “Please take notice that the plaintiff in the above entitled action appealed from the whole of the judgment entered therein on the 6th day of December, 1905, in favor of the defendant and against the ¡slaintiff, for fourteen dollars and sixty cents ($14.60) costs, to the circuit court in and for I Irookings county, Smith Dakota, upon questions of both law and fact therein, and demanded a new trial in said court.”

Without giving a form for the guidance of a party to an action desiring to appeal, section 99 of the Revised Justices’ Code provides that the appeal is taken by serving and filing in the manner designated, a notice of appeal '“which must state whether the appeal is taken from the whole or a part of the judgment; and if from a part, what part, and whether the appeal is taken on questions of law or fact, or both.” Section lot of the act is to the eli’ect that, when the appeal is taken on both 'questions of law and fact and a new trial in the appllate court is demanded in the notice, the action must be tried anew in that court. In support of the motion to dismiss for the reason that the circuit court ivas without jurisdiction, it is urged the use of the word “'appealed,” instead of "appeals,” in the notice of appeal, suggests that plaintiff had previously exercised that right; but he is not charged with bail faith, and no prejudice to the defendant is claimed on account of such an inadvertent error in grammatical tense. While the notice of appeal is made the jurisdictional instrument by which the case is nanismitted from a lower court to a higher court for review, and • M\s«.nt action should he denoted therein by the use of apt words, it is very plain that the service of the notice under consideration convoyed actual knowledge to the defendant that plaintiff, being dissal ¡.died with the judgment rendered in justice court, appeals ibivciVom on questions of law and fact to the circuit court wherein ;; new trial is demanded. U being universally recognized doctrine d -n .■ remedial statiPe should he liberally construed to effect its ■ ¡si something mom Tan a clerical mistake by a person pur-•m.v. .be pi escribed m.-ibn] of removal is necessary to defeat the !■ ’■ o; u¡el by jury on appeal from a justice of the peace. We are ¡ ;-.>etcd by counsel for appellant to the case* of Chinnnek v. ; n ■, W is. ;;(>') where it is icluetantU held that a pvovis-the Wisconsin statute with reference to notice must be 1 .o-^ued with rigid ovarme in ordei (o eon for jurisdiction 1 ..1 ; ■ oopeüaíe court, an ! from the opinion \, • ¡cm hv Dickson, i. v e manic as bi¡i■ <■ v.: The w'lv d, r:-.r n ■. of this. rom': v:..-d in ei- brief, and ;!v medy reiüvú in nuier to give jurisdie-lioii i- v-.e; of apnea' . 'om junices of the pea.ee, are familia' 1 ■, d-¡ v ."'¡vlcmeis of ¡be Dm who have had occasion to investígale '•■o ulnor1. The seme rigid doctrine was reiterated and applied In the majority of the court in the recent case of Widner v. Wood, 19 Wis. 190; so that it is undoubtedly as true now as it ever was that the requirements of the statute must be pursued with the uttermost exactness, or the appeal will be a failure. I could not concur in the last decision. I doubted then, and doubt now, the correctness of the rule. It is technical in the extreme, and has been enforced with a degree of illiberality which does not charaterize the practice in civil actions in any other particular. It is in clear opposition to the maxim, universally observed, that appeals from inferior tribunals are favored in the law."

Counsel for appellant also insist that the docket of the justice, quoted in this opinion, shows that two judgments were rendered in that court, one for the dismissal of the action and the other for costs, and that the appeal was taken, from the latter alone; but the view is neither justified by the record nor by the notice of appeal. As the recitals of the notice are applicable to but one judgment, which is sufficiently described therein to prevent any person of ordinary understanding from being misled, it would require an unwarranted observance of something more exacting by far than the letter of the law to' reverse the ruling of the circuit court on the motion to dismiss for the want of jurisdiction. Lancaster v. McDonald, 14 Or. 264, 12 Pac. 374; In re Dugan, 129 Iowa, 241, 105 N. W. 514; Horrell v. Homebuilders’ Ass’n, 40 Wash. 531, 82 Pac. 889. But one judgment can be rendered in an action trie i in justice court, and sections 79 and 93 of the Revised Justices’ Code expressly require the justice to specify, tax, and include in such judgment the costs allowed by law to the prevailing party, and that is exactly what was done, although some superfluous words were used. “Much less degree of technicality and formality is required in the judgments of justices of the peace and other inferior courts that i-s exacted in respect to' the judgment of courts of record.” Black on Judgments, 115. The phraseology of the justice distinctly shows the final adjudication and determination of the rights of the parties to the action by a judgment of dismissal, and for costs against plaintiff in favor of defendant, and from die whole of such judgment plaintiff appealed on questions of both law and fact, and demanded a new trial in circuit court. This judgment and the notice of appeal must be tested by substance rather than b) form, and appellant’s standard for the interpretation of proceedings of this character finds no justification in law. Lynch v. Kelly, 41 Cal. 232; Felter v. Mulliner, 2 Johns, (N. Y. 181; Gaines v. Betts, 2 Doug. (Mich.) 98.

Tt is now deemed essential to the proper understanding and consideration of the next question of law discussed, in appellant’s brief, relative to the rejection of certain oral testimony, to make a brief -statement of the nature of the action, together with the facts and circumstances disclosed by the record. The object of the action was to- enforce payment of a small account for meats and other household supplies purchased by appellant while respondent and one Frank Alton were engaged in the business of conducting a meat market under the firm name of Haag & Alton. On the 9th day of October, 1905, this co-partnership was dissolved by mutual consent evidenced by a written contract, in the nature of a bill of sale, executed in due form by both parties, and by the terms of which the retiring partner, Frank Alton, sold and delivered to respondent his entire interest in the business, including among other property all partnership accounts, notes and demands due the firm, and, according to the express terms of the written instrument “Lewis Haag agreed to pay all of - the debts and obligations of said Haag & Alton and none other.” Appellant admits in his answer that he made the purchases of Haag & Alton as alleged in the complaint and, in support of the plea of payment, offered to prove at the trial that at the time of the dissolution of the firm of Haag & Alton, and as part consideration for the purchase and sale of the partnership property, “the plaintiff in this action, Lewis Haag, agreed -to- and did assume certain individual debts of Frank Alton, his copartner, among which individual debts was the debt to the defendant J. C. Burns by F. J. Alton, one of the said copartners.” To this offer an objection was made on the ground that the writ-ten contract could not be varied by such parol testimony; and it is urged with much candor that the trial court erred in sustaining the objection. The exact contention of counsel for appellant is that the offered testimony related to the consideration expressed in the contract, which may usually be contradicted by parol testimony, and that, in any event, such written instrument did not preclude appellant Burns, who> was not a parly to such written ihstrument, from showing the actual agreement upon the dissolution of the copartnership.

At the trial of the case of Schneider v. Kirkpatrick, 80 Mo. App. 145, plaintiff sought to contradict a written contract between the defendant and one Smith, to which he was not a party, by attempting -to prove by parol that such written contract did not correctly state-the terms of a settlement under which he claimed a substantial right; and the court said: “It would be strange if he could prove and enforce promises made to Smith which Smith himself could not prove or enforce. The position of one for whose benefit a promise is made cannot be better that that of the one who procures it to be made and to whom it is made.” The headnote, fully sustained by the opinion, is as follows: “One who bases his claim upon a contract between others to which he is not a party is bound by the terms of such contract, and may not vary the 1erms thereof by parol evidence.” Where both parties to an action a're strangers to a written instrument, and the same is but collaterally involved in the controversy, good authority may be found for the admission of parol testimony to vary its terms with reference to the consideration, but it is equally well settled that an obligation in the nature of a covenant entered into upon the dissolution of a partnership cannot be disputed or augmented in favor of a retiring partner by proof of a contemporaneous oral agreement to pay his individual debts. Nor does the person for whose benefit it is alleged such promise was made and who claims under it stand in a position of a stranger, and he is therefore concluded by the terms of a contract for the dissolution of a partnership as completely as a retiring partner who procured the purported agreement to l)o made. Sayre v. Burdick, 47 Minn. 367, 50 N. Y. 245: Selehow v. Stymus, 26 Hun, 145: Davis v. Gann, 63 Mo. App. 425: Walter v. Dearing, 65 S. W. 380; Spingarn v. Rosenfeld, 4 Misc. Rep. 523, 24 N. Y. Supp. 733; Libby v. Company. 67 N. Y. 587, 32 Atl. 772: Cook v. National Bank, 90 Mich, 214, 5 N. W. 206; Cunningham v. Martin, 46 Kan. 352, 26 Pac. 696: Hodson v. Varney, 122 Cal. 619, 55 Pac. 413: Herbert & Damare, v. Maxine Dupaty, 42 La. Ann. 343, 7 South, 650: 9 ¡'.new'. of P\id. 328. In the case of Delany v. Anderson, 54 Ga. 588. the <vaM said: “W’lieie one partner buys out the other and assumes all the liabilities of the firm by an instrument in writing, parol evident n is not admissible to show a parol s'>Teeinent to par a per-■anual obligation of the retiring- partner, such as a hoard bill.”

't the conclusion of the trial, and after the court refused to ■-rr nit Frank .-Alton to testify that there was an oral ain e-< w mr, made at the time the partnership was dissolved, by which mspm'd-ent I!nag assumed and obligated himself to pay the individual debts of the witness, an application was made to file an amended an1-.er, ;1!<-ging fraudulent representations of responden! :< ■ to agree'.lent entered into at the dissolution of the --.a-í-n:-¡ -hip. appellant claims the right to offset .Alton's individual debt to liim against Dic. debl to the pa’-t'i',-''sbin of i Gag <?.- Alton, and both ot-d," inrn ...ítv from liah'.lilv under the contract of dissolution. ,b - v, eight of well-reasoned authority b" to, the effect that neid.w 1 ."'i go behind ilv' clear langun"V of the written in- ■ in:'-'<-nt. unless there is smucihing to justify both in doing; so. Not ¡he iigbiest ambiguiiv, rieempletcniws, or uncertainty is claimed or can be found in the contract for the dissolution of the partnership of Haag & Alten, nor in the published notice thereof, signed by both parties and from which we quote as follows: ‘'Hewis Haag, one of said partners, will pay all of the debts and obligations of said firm,'and none other; anti will collect- all notes, accounts and demands due said firm, and will in the future continue said business, while Frank J. Alton retires therefrom.” In the absence of fraud in some way practiced upon an illiterate person or one in a fiduciary relation without capacity or opportunity to read, it must be conclusively presumed that he advisedly acquiesced in ,a written instrument containing his signature, and he is estopped from orally disputing its terms. Farlow v. Chambers, 21 S. D. 128, 110 N. W. 94. Were this view untenable, a reversal would not follow, for the reason that the proposed amended answer contains no allegation of a specific fraudulent act upon which any one relied, and proof thereunder of actionable fraud would scarcely be admissible. While the rejection of the amended answer, which, if of any utility, would materially change the issues, was not an abuse of discretion, we prefer to rest this decision upon the substantive law by which appellant is precluded from ingrafting upon the written contract, “to pay all the debts and obligatons of Haag & Alton and none other.” tlie repugnant oral undertaking to pay the individual debts of Alton.

The judgment appealed from is affirmed.