2 Nev. 128 | Nev. | 1866
Lead Opinion
Opinion by
The complaint in this action was in the following form:
“ John Howard, the plaintiff, complains of the defendants, John Richards and Elias Richards, and for his cause of complaint alleges that heretofore, to wit: on the nineteenth day of February, A.p. 1864, the said defendants made, executed, and delivered to the plaintiff their promissory notes in writing, of which the following are copies:
“ Nevada Territory, Douglas County, 1 February 19th, 1864. j
“ $1000. On the first day of November next, for value received, we promise to pay John Howard,-or bearer, the sum of One
“ John Richards,
“Elias Richards.
“ Douglas County, February 19th, 1864.
“ $1000. On the first day of May, a.d. 1865, for value received, we promise to pay John Howard, or bearer, the sum of One Thousand Dollars in good and lawful money of the United States of America.
“ John Richards,
“Elias Richards.
“ That said notes are long past due, that the plaintiff is now the legal holder and owner thereof, and that there is due and owing and payable thereon from the defendant to this plaintiff the sum of two thousand and three hundred and thirty-three dollars, for which sum the plaintiff prays judgment against said defendants, together with" the costs of this action.”
To this complaint the defendants interpose a general demurrer, which was overruled by the Court below, and upon the refusal of the defendant to answer, judgment was rendered in favor of plaintiff, in accordance with the prayer of his complaint, from which the defendants appeal.
It is argued here that the complaint is defective in not alleging the nonpayment of the notes, and that for that reason the demurrer should have been sustained.
In our judgment the complaint is sufficient, though it would have been a much better pleading had it contained a direct and positive allegation of nonpayment. By the rules of pleading which have grown up under the Code of Procedure or Practice Act, all of the mere formal parts of pleadings which the Common Law -required are dispensed with, and nothing is now required but a concise statement of the facts necessary to be proven to entitle the party, plaintiff or defendant, to the relief claimed. A complaint is sufficient if it contains a clear, positive, and direct statement of facts which, if proven, will entitle the plaintiff to the relief which he seeks.
This complaint certainly contains allegations of all the principal facts which it would be necessary to establish to authorize a recov
It is provided by Section 70 of the Practice Act, that “in the construction of a pleading, for the purpose of determining its effect, its allegations shall be literally construed, with a view to substantial justice between the parties ;” and Section 37 declares that “ all forms of pleadings in civil actions, and the rules by which the sufficiency of the pleadings shall be determined, shall be those prescribed by this Act.” When tested by the rule that pleadings mjast be liberally construed, with a view to substantial justice between the parties, we could scarcely say, in a case of this kind, where the notes are fully set out, and the complaint shows the execution, delivery, maturity, and ownership of them, that the statement that there is a certain sum “ due, owing, and payable ” thereon is not a sufficient allegation of nonpayment. Indeed, the law presumes the nonpayment from the fact that they remain in the possession of the plaintiff. It is somewhat like the presumption of law that bills and notes are founded -upon a sufficient consideration, and hence it is entirely unnecessary to allege a consideration in an action upon such instruments; and yet a complaint upon any other species of simple contracts must show the consideration upon which it is founded, or it will be radically defective.
In the case of Allen v. Patterson, 7 N. Y. 476, it was held that a complaint was sufficient which in substance stated that the defendant was indebted to the plaintiff in a certain sum of money for goods, wares and merchandise, sold and delivered to the defendant at his request, on the first day of May, 1849, at the city of Buffalo; that the items of account were twenty in number, and then concluding as follows: “ And the plaintiffs say that there is now due them from the defendant the sum of three hundred and seventy-one dollars and one cent, for which sum the plaintiffs demand judgment.” It has been said in some of the subsequent cases in New York that this complaint was not an authority as to the standard of
Appellant claims that the case of the State Telegraph Company v. Patterson, 1 Nevada, sustains his view of the complaint in this case. In that case we merely held that the facts upon which the plaintiff was entitled to recover should be stated — that it was not sufficient merely to state conclusions of law. But where all the facts necessary to constitute a cause of action are alleged, as in this case, we did not hold that a statement of a conclusion of law would vitiate the pleading. We conclude that the complaint is sufficient, and that the demurrer was therefore properly overruled.
As to the question raised upon the cost bill, we are unable to perceive how it can be reviewed upon this appeal. There is no statement or bill of exceptions. The appeal is simply from the judgment, which shows no irregularity in the allowance of costs. The motions made by the appellant, long after the appeal was perfected, to strike out the cost biff cannot be reviewed upon an appeal from the judgment. The cost bill is no part of the judgment roll, and is not properly before us; we cannot therefore inquire into its regularity, nor into any proceedings which were taken after the appeal from the judgment was perfected..
Where there is no statement, and the appeal is simply from the judgment, nothing is brought to the Appellate Court but the judgment roll. (Practice Act, Section 280.) The mistake in the calculation of the amount for which judgment should be rendered, ought to have been called to the attention of the Court below, and a motion made there to correct it, if that could be done. Such a point cannot properly be raised in the Appellate Court for the first time. (Abel Guy v. Edward Franklin, 5 Cal. 417.) However, we deem it our duty to correct the error, but to impose the costs of this appeal upon the appellant.
The Court below will therefore reduce the judgment one hundred
Concurrence Opinion
Opinion by
I concur in the opinion of the majority of the Court in every part thereof, except as to the judgment for costs. To make my views on that branch of the case more intelligible, I will make a succinct statement of the facts.
On the eighteenth of December, 1865, the Court ordered judgment to be entered for the plaintiff, as prayed for in his complaint. On the nineteenth, and before the judgment was formally entered up by the Clerk, the Court made an order staying proceedings for ten days to enable defendants to perfect an appeal.
A notice of appeal was served and filed on the twenty-eighth day of December, 1865.
On the twenty-ninth, the judgment was entered up by the Clerk, and on the same day, an undertaking on appeal was filed.
On the twenty-sixth of December, for the first time, plaintiff filed his cost bill, amounting to $194.75, which was included in the judgment entered by the Clerk on the twenty-ninth.
On the eighth of January, 1866, the defendants gave notice of intention to move to strike out the costs from the judgment. This motion was made, and the Court below refused to strike out the costs. Upon this state of facts, the question presented to our consideration is whether that-part of the judgment which calls for costs should or should not be held to be erroneous.
Section 197, of the Practice Act, requires the Clerk, within twenty-four hours after verdict, (except in particular cases) to enter judgment in conformity therewith.
Section 453 provides that “ the party in whose favor judgment is rendered, and who claims his costs, shall deliver to the Clerk of the Court, within two days after the verdict or decision of the Court, a memorandum of the items of his costs, etc., etc. Taking these two sections together, and it is plain what should be the proper practice. Whenever there is a general verdict for one of the parties to a suit, or an order of Court for judgment on either side, it becomes the duty of the Clerk to enter up the judgment within twenty-four hours after such verdict or order. But, as the sue
But when the blank is filled in it becomes a part of the judgment, and must be for most, if not all purposes, considered as of the date of the judgment. In the case of the California State Telegraph Company v. Patterson, 1st Nevada, 151, this Court held, that an appeal might be taken from a judgment when such judgment had been ordered by the Court, and a minute made of such order, although the formal judgment had not been regularly entered up by the Clerk.
And I think it must be held, that when the final judgment is entered, it may be treated as bearing date by relation as of the time the order for judgment was made. At least for the purposes of appeal, it must be considered as of that date. In this case, the judgment must be considered as of the date of the eighteenth of December, when the Judge ordered judgment to be entered. The Clerk should have entered up the judgment either on the eighteenth or nineteenth of December, leaving a blank for the costs. No cost bill being filed before the end of the twentieth, the judgment (had the Clerk performed his duty at the right time) would have become complete, and thereafter he could have made no entry in or alteration of the judgment. But the Clerk did not in reality enter up the judgment until the twenty-ninth. This, I think, could not alter the rights of the parties. The judgment was rendered and the Clerk ordered to enter judgment on the eighteenth. Within two days thereafter the plaintiff should have filed his cost bill. Failing to do so, I am of the opinion he lost his right to costs. (See Chapin v. Broder, 16 Cal. 418-19.)
Then if the plaintiff had no right to file his cost bill after the twentieth, how were the defendants to take advantage of that failure ? Clearly, I think, by appealing from the judgment. The costs were a part of the judgment, and if improperly included in the judgment it was error. It might be very proper in such case,
The statute provides for appeals from orders made after judgment, but in such cases the appellant is not heard to complain of anything contained in the judgment. But appellant’s theory is that the judgment itself is right, and the wrong is in something done after judgment. If the judgment, or any part of it, is to be attacked, the appeal must be from the judgment.
If, for instance, in this case, the Court below had stricken out the costs from the judgment, and the appeal had been by the plaintiff, then undoubtedly the appeal should have been directly from the order striking out. Eor the complaint would be, not that the judgment contained any error, but that an order made after judgment was erroneous. (See the case of Maples v. Geller, 1 Nevada, 233.)
Then, if the appeal from the judgment was the right remedy, the only other question is : Does the record show that the cost bill was filed too late ? In other words : Is the fact judicially shown to us that the cost bill was filed at a date when the right to file had elapsed ? Respondents contend that on an appeal from the judgment, where there is no statement, the Court can only look at the judgment roll. Section 203 of the Practice Act, in relation to judgment roll, reads as follows: “ Immediately after entering the judgment, the Clerk shall attach together and file the following papers, which shall constitute the judgment roll: First — In case the complaint be not answered by any defendant, the summons, with the affidavit, or proof of service, and the complaint, with a memorandum indorsed on the complaint that the default of the defendant, in not answering, was entered, and a copy of the judgment. Second — In all other cases, the summons, pleadings, and a copy of the judgment, and any orders relating to a change of the parties.”
Section 284 of the Act reads as follows: “ On an appeal from a final judgment, the appellant shall furnish the Court with a copy of
Now, whilst the last section says what papers an appellant shall bring before this Court, it does not say expressly that none others shall be brought; and even if it had said so, I am of the opinion such law would have been wholly inoperative, null and void. The Constitution gives the right of appeal to this Court. No law of the Legislature could deprive the Court of the power of looking into the record to determine the rights of appellant.
The Legislature may prescribe the terms and mode of taking appeals, and may limit the time within which appeals are to be taken; but, under the pretense of prescribing forms, it cannot deprive parties of substantial rights. But I am of opinion the Legislature never intended this Court to be restricted to the examination of these things mentioned in Section 284. That section does not even provide for bringing up the undertaking on appeal, and without that this Court could not know there was an appeal. It makes no provision for bringing up bills of exceptions, yet the manner of settling such bills is provided for in another section.
When an appeal is taken from a judgment, this Court must of necessity look into the record to see if there is anything therein to sustain the judgment. We must look at the complaint to see that it contains a statement of facts sufficient to warrant the judgment rendered.
We must also, if there is no answer, look at the summons and return, to see that the defendant has been properly brought into Court. So, too, if there is a judgment for costs, it appears to me we must look into the record to see if there is any foundation for that part of the judgment; for, without a cost bill, there is no jurisdiction to render any judgment for costs. If, upon looking at
Nor is there anything new or startling in this doctrine. The judgment roll, as directed by the statute to be made up, neither includes bills of exceptions, the verdict of the jury, nor the findings of fact by the Court. Yet all these things constitute a part of the record; and, in California, under a Practice Act very similar to our own, they have held that a case may be reversed on a bill of exceptions, where there is no statement. So, too, the verdict of a jury or finding of facts signed by the Judge, although neither embodied in a statement or bill of exceptions, may, in connection with the pleadings, afford grounds for the reversal of a judgment. (See Reynolds v. Harris, 8 Cal. 617-18; see also 5 Cal. 150-51.)
I conclude, then, that the Section 284, which says what the appellant shall bring up, does not preclude the bringing up of other matters of record in a case where they are necessary to determine the rights of the parties.
In conclusion, I hold the judgment should be treated as a judgment of the date of December 18th, 1865. That no bill of costs having been filed on or before the twentieth of December, the judgment that day was perfected, and the blanks for costs could not thereafter be filled up. It appearing from the filing of the cost bill that it was not filed before the twenty-sixth, it was a nullity, and that part of the judgment which is for costs is erroneous. That part of the judgment should be stricken out, and the appellant should recover his costs.
I think the order of Court staying proceedings has nothing to do with this question. The order was not intended to stay the filing of a cost bill, and certainly it was not so understood by the plaintiff, for he filed his bill whilst the order was in full force.
