8 Minn. 243 | Minn. | 1863
My the Court.
The Appellant commenced an action in a Justice’s Court against Respondent, and filed Ms complaint Sept. 18,1862, the return day of the summons. The answer was filed, as appears by an endorsement thereon, Sept. 26, 1862, to which time the cause had been adjourned by consent of parties. The cause was called on that day at the adjourned hour, and Plaintiff did not appear. Defendant appeared by attorney, and filed his answer. The Plaintiff did not appear within the hour, and Defendant left, offering no evidence. The Justice rendered judgment for Defendant for one dollar damages, and costs taxed at $4.05. The Plaintiff took the case to the District Court by eertiorari, where the judgment was affirmed. The Plaintiff then appealed to this Court.
The first objection here raised is, that it was error in the Justice to permit the Defendant to file his answer after the expiration of one week from the time named in the summons
It appears by the return that the adjournment to the.26th, was by consent, but that dees not carry with it consent for the Defendant to plead after the expiration of a week, and consequently the question does not here arise, whether consent of the parties would give the Justice jurisdiction to receive the plea, after the expiration of the time limited by statute. All that the Defendant could have done upon the adjourned day, was to move for a dismissal of the action upon the non-appearance of the Plaintiff within the hour. (Comp.Stat.,p.506,sec.57, 3 Abb. Prac. R., 107.) The Justice, had, then, no authority’ to receive a plea from the Defendant, or to render a judgment upon the merits in the absence of the Plaintiff.
There is another objection urged by Plaintiff, which I also think fatal to the judgment below. The answer set up a counter-claim, alleging that the Plaintiff was indebted to Defendant in the sum of $28, for lumbar sold and delivered to said Plaintiff, at Plaintiff’s request. There is no statement in the answer where the lumber was sold, nor that the lumber was worth the sum charged, nor that the Plaintiff ever promised to pay that sum. The answer pleads a bare conclusion of law, not a single fact being stated showing such indebtedness. The answer is clearly insufficient under the statute,
It is true that Courts will overlook defects, both of substance and form, in the pleadings in a Justice’s Court, when the parties go to trial on the same without objection, and a good cause of action is proved. And though in such cases judgment will not usually be reversed for defects in the pleadings, yet 1 know of no well considered case, upon a declaration or pleading which states no facts constituting a cause of action, and where a cause of action has not been proved, that the judgment has been held good. Nor is this case aided by the provision of statute that every material allegation in a complaint, or relating to a counter-elaim in an answer, not denied by'the pleading of the adverse party, must on the 'trial be taken to be true. No material allegation of any kind is pleaded in this answer. The allegation of indebtedness may be omitted, if facts are pleaded showing an indebtedness, but the reverse of this is not true. It appears by the return that no evidence was offered, therefore there was no proof to supply the defects in the answer. Nor does a party waive irregularities by his failure to appear, and if a party takes judgment in the absence of the adverse party, he must see to it that he complies with the provisions of statute. (5 Minn., 280.)
The judgment below must be reversed.
