2 Neb. 286 | Neb. | 1873
The agreement of the attorneys in the Court below, by which the cause was submitted, to the determination of the Court on the pleadings without proof, must bind the parties. They were competent to enter into the stipulation; and there is no suggestion in the record that any advantage was taken by either: had there been, the Court below was the place to seek relief from it.
The defendant, by his answer, admits the execution and delivery of the note. *The answer sets up a good defence to it, however, if it is to be taken as true with
In the next chapter, under the head of “ General Rules of Pleading,” we have, — “ Sect. 134. — Every material
By the first of these sections, it will be seen that a reply is required to every allegation of new matter set up in the answer, with no qualification that such new matter is confined to that constituting a counter-claim or set-off; while in the last a reply is demanded only in case the answer sets up a counter-claim or set-off. There is, upon their face, an apparent conflict.
Notwithstanding we may be satisfied that this seeming hostility between these different provisions was not the result of deliberate purpose of the legislature enacting them, but was the result of the haste attending the revision of the statutes by the legislature of 1866, yet, being parts of the same act, we must interpret them without reference to any former statute on the same subject, or to the history of their enactment.
One of the first and most imperative canons of construction commands us to construe statutes so as to give, if possible, some effect to every clause, and not to place one portion in antagonism to another. Brooks v. Mobile School Commissioners, 31 Ala., 227. Applying this rule to sect. 108 above, we could not accept it literally and fully without destroying and annulling sect. 184. New matter is not confined to counter-claim or set-off; and it is therefore utterly impossible to require a reply to
Another familiar rule of construction is, that specific provisions relating to a particular subject must govern in respect to that subject as against general provisions in other parts of the law, which might otherwise be broad enough to include it. Pelt v. Pelt, 19 Wis., 193; City of Covington v. McNickle’s Heirs, 18 B. Monroe, 286 ; Peyton v. Moseley, 3 Mon., 77. Here, in sect. 108, we have the general provision that all new matter must be replied to. In a subsequent section, this new matter is limited to such, however, as constitutes a counter-claim or set-off. In this way the whole may be harmonized, and effect given to all parts of the statute. It is saying, in effect, that all new matter amounting to a counter-claim or set-off must be replied to: that not constituting such counter-claim or set-off will be considered denied without reply.
I know that the practice has prevailed in the several districts to reply to all allegations of new matter in the answer. This no doubt has been done, not from any conviction, that, under the law, it is necessary, but because it has been thought easier to do so than hazard an adverse determination of this Court. But, as the matter is squarely presented in the case before us, I am of the opinion, that, under the existing provisions of the Code, a reply to an answer is demanded only in cases where such answer sets up new matter constituting a counterclaim or set-off.
We were asked by counsel for the defendant in error,
The judgment of the Court below is reversed; and judgment will be entered in the Court for the plaintiff for the amount claimed in his petition.
Judgment accordingly.