9 Ind. 273 | Ind. | 1857
This was an action upon a bill of exchange for 718 dollars. The bill is dated Cincinnati, July the 14th, 1854. It was drawn by the Ironton Rolling Mill Company, payable to themselves at Reynolds’s Bank, Lafayette, Indiana, at six months. It was accepted by Hubler and F'alley, who were the defendants below, and indorsed by the company to the appellees, who were the plaintiffs.
The defendants answered the complaint — First. By a general denial. Secondly. That the plaintiffs are not the real parties in interest. Upon the filing of the answer, the Court, over the defendants’ objection, permitted the complaint to be amended by substituting the names Richard B. Pullen, and Thomas S. Brown, for those of Robert Pullen and Joseph S. Pullen — the last two being names in which the suit was originally instituted. Thereupon, the defendants moved for a continuance; but their motion was overruled. They then, by leave, &c., filed additional paragraphs to their answer, as follows: Thirdly. That other parties, and not the plaintiffs, are the real parties in interest. Fourthly. That the defendants have fully paid the bill
Issues were made on the second and third defenses; but to the fourth there was no reply. The cause was submitted to the Court for trial, and final judgment given for the plaintiffs.
The first inquiry relates to the amendment of the complaint, whereby the Court allowed the substitution of names different from those in which the suit was originally brought.
The code says, “ The Court may at any time, in its discretion, and upon such terms as may be deemed proper, for the furtherance of justice, direct the name of any party to be added or struck out; a mistake in name, &c., to be corrected; * * * * when the amendment does not substantially change the claim or defense.” 2 R. S. p. 48. This provision evidently embraces the amendment under consideration. The action of the Court in giving leave to amend, seems to have been in furtherance of justice, and not in prejudice of the defendants’ rights.
But they insist that the amendment, though it may have been properly allowed, entitled them to a continuance. We are not of that opinion. By the mere change of names, the cause of action stated in the complaint could not be substantially varied. Moreover, the application for the continuance should have been supported by an affidavit, showing distinctly in what respect the defendants were, by the amendment, prejudiced in their preparation for trial. 2 R. S. p. 48.
Again, the refusal of the Court to grant a rule on the plaintiffs to answer the interrogatories, is assigned for error
We have decided that a mere failure to answer such interrogatories, was no cause to delay the trial; that the party requiring such answer, should take the proper steps to enforce it. Lent v. Knott, 7 Ind. R. 230.—Rice v. Derby, id. 649. In this instance, however, the plaintiffs failed to answer the interrogatories, though an order directing such answer was made when they were filed. The plaintiffs were, therefore, in default; and it is not for them to complain that no further steps were taken to enforce an answer until the calling of the cause for trial.
We think the motion to grant a rule should have been sustained.
It remains to be inquired whether the failure of the plaintiffs to reply to the defense of payment, is ground for the reversal of the judgment.
The appellees contend that payment of the bill in suit could have been given in evidence under the general denial; and hence; the omission of a reply to the fourth paragraph of the answer was not essential to a full trial of the cause. The code provides that, “all defenses, except the mere denial of the facts alleged by the plaintiff, shall be specially pleaded.” 2 R. S. p. 42, s. 66. This evidently means facts which the plaintiff, to sustain his action, is bound to prove. The complaint, it is true, ordinarily avers, that.the instrument sued on has not been paid; still, proof
We are of opinion that it was not competent for the defendants to give evidence of payment under the general denial; and there being no reply to the fourth defense, there was, in effect, a trial without an issue, which has been often adjudged erroneous.
The judgment is reversed with costs. Cause remanded, &c.
Per Johnson, J., in Stoddart v. Onondaga Annual Conference, 12 Barb. S. C. 575. Mr. Van Santvoord says that “The phraseology in which this proposition is clothed may, perhaps, suggest criticism. Its meaning, however, I apprehend is, that every fact which the plaintiff, in the first instance, is under the necessity of proving to sustain his action, or every matter of fact which must or may be alleged in a good complaint, is the proper subject of denial; but that all other matters, that is to say, matters which do not go merely to controvert a fact, or the facts in the complaint, must be set up affirmatively in the answer, and the proposition, in a general sense, it is thought, may be sustained on both principle and authority.” Van Santv. Pl. 407. See 6 How. Pr. R. 298; Fay v. Grimsteed, 10 Barb. S. C. 321; Houghton v. Townsend, 8 How. Pr. R. 441; Catlin v. Gunter, 1 Duer, 253; Livingston v. Finkle, 8 How. Pr. R. 486.
“ Ho defense which does not controvert any material allegation of the complaint, can be given in evidence under a general or special traverse.” Per Selden, J., in Benedict v. Seymour, 6 How. Pr. R. 298; Van Santv. Pl. 416. “ Those allegations only in a complaint are to be deemed material, which the plaintiff must prove on the trial, in order to maintain his action; and it is upon these only that an issue can be taken by specific denial.” Van Santv. Pl. 416; Garvey v. Fowler, 5 Sandf. 54.
In Edson v. Dillage, 8 How. Pr. R. 273, “denials of non-payment and indebtedness were adjudged frivolous, and ordered to be struck out.” “Ho now matter, it was said, would be admissible in evidence under them. The defend