Porter v. Bichard

| Ariz. | Jan 15, 1873

By Court :

In this case, eight days after service of summons, William Bichard, the one of the two defendants residing without the jurisdiction of this court, filed his sworn and informal answer to the unsworn complaint of the plaintiff, James P. Porter, in which he admits some of the allegations of the said complaint, denies all knowledge of its other more material allegations, avers that the other co-defendant, Nicholas Bichard, a resident of San Francisco, alone can and will make full answer to such complaint, and asks the further time of sixty days to enable him to do so. With this answer on file in the case, the clerk of the district court in which the suit was brought, twenty days after service of summons on the said William Bichard, that is, on the eleventh day of November, 1871, at the instance of the plaintiff’s counsel, declared the defendants in default, and entered judgment against them and in favor of the plaintiff, for the sum of thirteen hundred and forty-six dollars, with costs of suit.

Subsequently, on the twenty-second day of June, 1872, the district court, on motion of the defendant’s counsel and argument on behalf of both parties, ordered that this judgment should be opened and the defendants allowed to answer. From that order the plaintiff appealed, and now' asks this court to rescind it, and restore the judgment of the clerk, alleging the said order to have been null and void.

In addition to this averment of error on behalf of the plaintiff, the counsel for the defendant, in his notice of motion to open the judgment in the court below, suggested an exception to the jurisdiction of the district court, alleging that the cause of action in the present case was so far an equitable one as to render the common-law remedy there sought inadequate to do justice between the parties. That suggestion was repeated in this court. A brief analysis of the case, however, will show that the district court, under our statutes, is entirely competent to dispose of it in justice to all the parties. The persons concerned in interest are but three; the plaintiff and the two defendants sued as partners; some of the relations of the opposite parties in the case, it is true, are similar to those of partners, but the aggregate relations of the parties are neither numerous nor complex, nor does the case present for solution any equitable element.

The plaintiff’s claim is for the net profits of freight, due him as alleged, on a contract between him and the defendants as common carriers, in which the services were to be performed by the respective parties, as provided in the said contract, and the capital contributed, the losses borne, and the profits divided equally between the parties. An account and discovery, in some of their simpler forms, may be required by the plaintiff of the defendants, in the solution of their controversy. The remedial powers of the district court are quite competent to do justice between the parties in this case, hardly less fully, and much more speedily and cheaply, than any mere court of equity. Issues clear and simple can always be extracted from any detail of fact, by complaint and answer under our statutes, and when the issues are thus developed, the parties can be made witnesses for each other, and can be interrogated under oath as exhaustively as the same can be done on a bill in equity for discovery. Their books can be inspected and their accounts unraveled in a case such as this so fully as to satisfy all the exigencies of justice. Nothing in the case, therefore, requires this or the district court to abdicate its common-law jurisdiction, which had already attached for the dilatory and expensive remedies of a court of equity.

The question recurs upon the validity of the order to open the judgment in the court below. The authority of the clerk to declare the defendants’ default is simply clerical, involving no judgment or discretion. The statute, Compiled Laws, p. 409, sec. 152, provides that judgment maybe thus entered if no answer has been filed with the clerk of the court. Any answer, when filed in the case, suspends the power of the clerk to declare the defendant’s default and judgment, however informal, and its value as a pleading must be determined by the judge and no one else. The answer of the defendant had, it seems, been filed by the clerk, who entered the judgment in this case, and had been on his file at least twenty days when the judgment was entered.

The informal answer of William Bichard, as it appears upon the record, though not competent to form a triable issue, was certainly sufficient to entitle the defendants to further time to answer. It would have been so found on application to the court or judge for further time to answer, it would have secured the defendants leave to answer over on a judgment overruling the plaintiff’s demurrer to it, and it would have entitled the defendants to a postponement of the trial in order to secure the testimony of Nicholas Bichard as a witness, on the trial of - the cause at some future time.

The conclusion therefore is, that the clerk was wrong in entering the judgment of default against the defendants, with the informal answer of William Bichard on file in this case, and that the judge of the district court of the third judicial district was right in rescinding such judgment after it had been entered.

It only remains to notice two more exceptions of the plaintiff’s counsel which were adverted to in his brief and on the oral argument of this case; one of these is, that the answer of William Bichard was on oath, while the complaint to which it purports to be responsive was not so, and that it was the answer of both parties though only made by one; the other of these minor exceptions is, that the defendants in the notice of motion to open the judgment and in the proceedings which grew out of it were not described and entitled as in the complaint, and that hence the notice was insufficient and inoperative and the order of the judgment null and void.

In the notice of motion, the defendants are described as “William Bichard and Nicholas Bichard,”and in the motion itself they are described as “William Bichard et al.” instead of “William Bichard and Nicholas Bichard, partners, doing business under the firm name and style of William Bichard & Co.,” as they are entitled in the complaint, and with the exception noted in the other parts of the proceedings. The title as here indicated was the mere badge of the notice, as explained and applied by the notice itself, to show who sent it, and, like all such notices, does not require the certainty of a pleading.

It is always sufficient where it informs the party entitled to its receipt of the thing to be done and leads him to the place of doing it at the proper time. The title was explained by the body of the notice, and together they left the plaintiff in no doubt of what was meant. Were William Bichard et al., and lawsuits between them and James P. Porter, so numerous that the latter could possibly have misunderstood this notice? Practically, this question would have to be answered in the negative, if there were nothing more.

But on turning to the record we find this admission on behalf of the plaintiff: “ I acknowledge service of the within motion. Prescott, Dec. 14,1871. (Signed) H. H. Cartter, Attorney for Plaintiff.” Besides this, the minutes of the case show that the counsel for the plaintiff attended at the hearing of the motion, and resisted Urn order. This would have cured all defects of notice, if any there were. The verification of the informal answer of William Bichard by affidavit does not in any manner impair its effect. Our Compiled Laws provide, p. 894, sec. 51: “ When the complaint is verified by affidavit, the answer shall be verified also.” . It does not prohibit such verification nor make it detract from the statement in any other case. For the truth is, the verification adds to the sanctity of the statement, and is not matter of exception in the present case.

The informal answer of William Bichard in this case thus commences, “ William Bichard for and in behalf of himself and Nicholas Bichard,” and thus concludes, “ So the defendants in this case respectfully pray this honorable district court,” etc. The remainder, and the whole effect, of this informal paper is, to tell the plaintiff, the clerk, and the court that the absent defendant Nicholas Bichard could and would make full answer to the complaint in the case, if time were allowed him to do so. He makes the statement and he prays for the time, as would have been obvious without the commencement or conclusion, on behalf of both the defendants; for both as parties to the suit were interested in it. It is impossible to see how this can impair the effect of this informal answer, or constitute any cause for rescinding the order for opening the judgment in controversy. This court, therefore, is thus constrained to disregard all these minor exceptions.

Some eases were cited in argument, but they have so little application to the present case that their discussion here would add little or nothing to its interest or instruction. They certainly ought not to vary the foregoing conclusions.

The judgment and order of this court, therefore, is that the order of the district court of the third judicial district, opening the judgment of default entered by the clerk of that court in this case, be confirmed, and the case be remanded there for further proceedings thereon.