146 Va. 553 | Va. Ct. App. | 1926
after making the foregoing statement,, delivered the following opinion of the court.
The plaintiff assigns as error the ruling of the court requiring him to make an election between the two causes of action claimed by the defendant-to have been set up in the declaration. It is argued by the defendant that plaintiff declared upon two separate causes of action not similar in their nature- and requiring widely different defenses, and therefore-the declaration was open to the objection of duplicity,, and the court properly required the plaintiff to elect upon 'which cause of action he would rely. The two distinct causes of action are.claimed by the defendant-to be (1) a claim for damages to the freehold occasioned by the alleged cutting of ties and bark without authority, which claim the plaintiff states was assigned to him by the court by its decree entered in the cause in. which the land was sold, and (2) a claim for damages-alleged to have been suffered by the plaintiff personally by reason of the deceit averred by the plaintiff to have-been practiced upon him by the defendant. The declaration sets out very fully a right of action founded, upon a trespass upon real estate, which is the proper-mode of proceeding for the unlawful cutting of timber, unless am action is brought in trover or detinue for-the timber removed after the cutting. Wood v. Weaver, 121 Va. 250, 92 S. E. 1001; French v. Stange Mining Co., 133 Va. 602, 615, 114 S. E. 121. It is a. recognized rule of practice in Virginia that duplicity
The plaintiff assigns as error the action of the court in overruling his motion to reject the defendant’s plea of the five year statute of limitations. The-plea is in the usual brief form generally approved in Virginia, and we see no reason why the court should have sustained the motion. It is stated in the petition the motion was made upon the ground that the claim set up in the declaration was originally due by White to the Commonwealth of Virginia and that the limitation did not run against the Commonwealth. It is manifest that such a reply to the plea could not be-asserted by way of a motion to reject or strike out the-plea. There was no error in this ruling of the court.
. By the order entered on October 17, 1923, the plaintiff filed a special replication to defendant’s plea, of the statute of limitations. The order recites that the defendant moved the court to reject the special replication on the ground that it was duplicitous, and thereupon the court ordered to be stricken out “the-first paragraph of said special replication containing1 allegations that the title to the claim sued on was in. the Commonwealth, and that the statute did not run.
“The said plaintiff comes and says that the cause of action mentioned in the declaration in this action was originally in favor of and due to the Commonwealth of Virginia and that the defendant was liable therefor to the Commonwealth of Virginia, and that the same was assigned to this plaintiff on the............................day of October, 1921, and that under the laws of Virginia the statute of limitations does not run against the Commonwealth of Virginia and does not run against the plaintiff as the assignee of the Commonwealth, and that this suit was brought in less than five years after said cause of action was assigned to this plaintiff.”
If the Commonwealth was the owner of the land at the time the trespass was committed, it was then public property and the right to sue for the trespass resided in the proper official of the Commonwealth. If this was the theory of this part of the replication to the plea, it presented a complete answer to the plea of the statute, and issue might have been taken upon the fact of ownership by the Commonwealth. The replication then continues, with a further reply to the plea, as follows:
“The plaintiff further replying to the plea of statute of limitations comes and says that at the time he purchased the lands in the declaration mentioned, to-wit: On the 12th day of May, 1920, he made enquiry of the commissioners who sold him said land as to the timber then standing and growing thereon and that it was then represented to the plaintiff by said commissioners that no timber had been cut from said land since the death of P. A. Forbes, who was the former owner thereof and
“And the plaintiff says that the said defendant by the indirect ways and means aforesaid obstructed the prosecution of the claims and demands against him set up in the declaration and that this suit was brought within less than five years after the said claim had been assigned to the plaintiff as stated in the declaration and within less than five years after the plaintiff discovered that
“And this the defendant is ready to verify.”
The replication is unquestionably an instance of double pleading, and as the objection to it was seasonably made in the lower court, the appellate eourt has to pass upon it, although if the question had been presented for the first time here it would not have called for any consideration by this court. Stimmel v. Benthall, 108 Va. 141, 60 S. E. 765. In Virginia it is a settled maxim of pleading that only one reply can be made to a special plea. Ches. & Ohio Ry. Co. v. Bank, 92 Va. 495, 23 S. E. 935, 44 L. R. A. 449; Burks Pl. & Pr. (2nd ed.), page 325, page 920. We infer from the argument of counsel in this court that the learned trial judge, in striking out the first part of the replication, was induced to do so by the further consideration •that the averment it contained was necessarily inconsistent with the prior pleadings in the case. It is scarcely possible that at the instance of the board of supervisors or of other creditors of the estate of P. A. Forbes the court had juridiction, in the chancery cause, to order a sale of any portion of the public domain of the State, in the manner stated in the declaration, and the two decrees in the record, entered in the chancery cause, sufficiently show that this could not have been the case. This tract of land was no doubt held by Hubard and Moon as commissioners or trustees for the purpose of selling it under the decree of September 2, 1910, in order that the proceeds of sale should be equally divided between the county and the State as preferred creditors of the decedent.
It is also to be noted that in the second paragraph of
We are of opinion that no error pie judicial to the plaintiff was committed in striking out the portion of the replication referred to.
A trial of the action was had on December 14, 1923, which resulted in a verdict and judgment for the plaintiff. Neither the defendant nor his counsel were present at this trial, and therefore only witnesses for the plaintiff were heard and no defense was made. Subsequently, at the same term of the court, the verdict and judgment were set aside upon the application of the defendant. To the granting of this application the plaintiff excepted and assigns the ruling of the court in that respect as error. It appears that the December term of the court commenced on the 11th day of-the month, and when the civil docket was called this case was fixed for trial on the 12th, the following day; on that day counsel for both sides were present prepared to go into the trial, the court having overruled a motion to continue it. The case could not be reached on that day, but it was understood it would be tried at that term of the court as soon as it could be reached. On the 13th it became evident the case could be taken up on the following day, and messages by telephone to the defendant, and by wire to defendant’s counsel to that effect were sent. The motion to set aside the verdict was submitted to the court upon affidavits, and no doubt, as is quite usual, upon oral statements by counsel. The court'evidently was convinced that the messages to the defendant and his counsel did not reach them until after the 14th. The learned trial judge had knowledge of what took place in court on the 11th and the 12th of December. If under all the circumstances' he was of opinion that the defendant had been inad
The remaining assignment of error is to the action of the court sustaining the demurrer to the plaintiff’s replication and rendering final judgment for the defendant. After the court had limited the replication to the facts set out in its second paragraph, the defendant demurred to the replication, the demurrer being in the following language:
“The defendant demurs to the special replication filed by the plaintiff in this action, and for cause of demurrer says that the allegations contained in said special replication could not constitute a reply to the plea of the statute of limitations in this action.”
The plaintiff than moved the court “that the defendant be required to further and more specifically state the grounds of the said demurrer in writing.” The court overruled this motion. This was properly done. Section 6115 of the Code provides a brief form for a general demurrer to a declaration or other pleading, and further requires that the demurrant shall, on motion of the opposite party, state the grounds of the demurrer specifically. The object of this statute is in the main twofold, that is to prevent reliance being placed upon an undisclosed objection to a mere matter of form, which is capable of amendment, and to prevent the demurrant from presenting, on appeal, grounds for the
In the case of Culpeper Bank v. Tidewater, etc., Co., 119 Va. 73, 89 S. E. 118, the court says (on page 82): “The question then to be considered is whether the Culpeper National Bank, by any indirect way or means, obstructed the prosecution of this suit; if so, then the time such obstruction continues should not be computed as any part of the time in which the said right might or ought to have been presented. It matters not that Smith fraudulently concealed the fact so
In 37 Corpus Juris, page 977, it is said:
“The mere denial of a fact or a falsehood is not itself a fraudulent-concealment of a cause of action which will operate to postpone the running of the statute of limitations, the fact being capable of proof irrespective of any admission by the party, although there may be no other evidence at hand than the knowledge of plaintiff himself. It is otherwise, however, where there is no other means of discovering the particular cause of action.”
In this ease the action is not upon the misrepresentation, and in that event the limitation period may have been one year under the decision in the recent case of Cover v. Critcher, 143 Va. 357, 130 S. E. 238.
There may no doubt be circumstances under which a denial of the existence of a fact, intentionally made to ward off the prosecution of a right by the plaintiff, should be held to be a fraudulent obstruction to the institution of the suit. A debtor, aware of the fact that a suit is impending against him may keep from his creditor knowledge of facts, which in good faith he should impart to him on enquiry, or which he is under
We do not see how.the court could have ruled otherwise than to sustain the demurrer, and we perceive no error on its part in so doing.
In Burks Pl. & Pr. (2nd ed.), page 356, the learned author says:
“If there be a demurrer to some counts of a declaration while issues of fact are pending on other counts, final judgment cannot be entered upon sustaining the demurrer while such issues of fact are pending. The same rule applies where issués of law and fact are pending on several pleas. But if the question of law raised by the demurrer goes to the whole merits of the case, .final judgment may be entered thereon without trying the other issues.” Instances of necessity for the entry of final judgment in such cases may be found in Morris v. Lyon, 84 Va. 331, 4 S. E. 734; Baker v. Butterworth, 119 Va. 402, 89 S. E. 849, L. R. A. 1916F, 1287; Wood v. Carpenter, 101 U. S. 135, 25 L. Ed. 807.
The judgment is affirmed.
Affirmed.