Roys v. Lull

9 Wis. 324 | Wis. | 1859

By the Court,

Paine, J.

The judgment in this case must be affirmed. The defendants below attempted to justify the taking of the plaintiffs horse under an execution issued by a justice of the peace. Under the old system of pleading it was well settled that in order to establish such a justification the party must aver, and prove on execution and judgment, in a case or proceeding in which the justice had jurisdiction, as no presumptions were made in favor of the jurisdiction of inferior magistrates, and it was not sufficient to aver generally, that the justice had jurisdiction, but the facts showing it must have been set forth.

The code contained a provision which is now found in § 23, chap. 125, R. S., 1858, which authorizes the party in pleading the judgment, or other determination of a court or officer of special jurisdiction, to set forth that it was “ duly made or given ;” and also provides that if this allegation be controverted, the party pleading shall be bound to establish, at the trial, the facts showing jurisdiction.

The authorities hold that where the party resorts to this general mode of pleading, he must use, if not the precise language of the statute, at least that which has the same signification. The answer in this case avers that proceedings were had before a justice, which were terminated by a “judgment being duly rendered ,” &c. We think this language equivalent to that of the statute, and that it must be considered a sufficient allegation of the existence of the judgment or proceedings before the justice, to have warranted the introduction of evidence showing jurisdiction. Were the defendants, then, bound to produce such evidence at the trial ? This would depend on whether the averment that “the judgment was duly rendered,” is to be deemed “ controverted.” And to determine this it will be necessary to consider § 15, chap. 125, which provides for a reply only where a counterclaim is set up in the answer, and § 32 of the same chapter, which provides that allegations of new matter in the answer not relating to a counter claim, “shall be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require.” It is clear that the justification set up in this answer, under the execution of the justice, does not amount to a counter claim. It is equally clear that it is not matter set up by way of justification. And under the provision of § 32, it was, therefore, to be deemed controverted, as though the plaintiff had expressly replied, denying that “thejudgment was duly rendered.”

Section 23, taken alone, would seem to indicate that when such a judgment is pleaded, the opposite party should in some manner expressly controvert it, unless he intends to relieve the party pleading it from the necessity of proving the jurisdiction at the trial. And if it should happen that the plaintiff’s right of action was based upon such a judgment, and he should plead it in this manner, it would undoubtedly be necessary for the defendant to controvert it in his answer, in order to compel .the plaintiff to prove it at the trial. But where the defense rests on such a judgment, and it is set up in the answer, it would seem that under § 32, it is to be deemed “ controverted” in all cases, so that the defendant must always be ready to prove the jurisdiction. It certainly seems a very idle ceremony to provide, as if with a design of giving the party some benefit, that he may plead a judgment in this general way, and need not prove it unless it is controverted; and then to provide that it should always be deemed controverted. But such seems to be the law, so far as a defense under such a judgment is concerned. The provisions of § 32, are not in harmony with the general spirit, or with the philosophy of pleading, which requires each party to give notice to the other of the various matters relied on in support of the action or defense. For this section allows either to avoid the allegations of the other, without giving any notice of the matter by which it is to be done. But we must take the law as we find it, and we think that under this section the allegation in the defendant’s answer that there was a judgment duly rendered, was to be deemed controverted, and that it was incumbent on them to have shown a judgment, and jurisdiction in the justice to render it. But there was an entire failure of such proof. They offered only the execution, which was of no' avail without showing the right of the magistrate to.issue it.

We see no error in the record of which the appellant can complain. The judgment is affirmed with costs.