85 F. 508 (8th Cir. 1898), 999, Hendrickson v. Bradley

Docket Nº:999.
Citation:85 F. 508
Case Date:January 03, 1898
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 508

85 F. 508 (8th Cir. 1898)




No. 999.

United States Court of Appeals, Eighth Circuit.

January 3, 1898

Charles J. Greene and Ralph W. Breckenridge (Asa Bird Gardiner, on brief), for appellant.

John W. Lacey, for appellee.

Before SANBORN, Circuit Judge, and PHILIPS, District Judge.

PHILIPS, District Judge.

This is a bill in equity, brought in the United States circuit court to set aside a judgment obtained by appellee in the state court of Natrona county, Wyo., against the Syndicate Improvement Company, a corporation created under the laws of said state. The answer to the bill was filed on the April rule day of court, to wit, April 5, 1897. No exceptions to this answer were filed at the following May rule day. The regular term of court convened on the 10th day of May, 1897, at which time the complainant (appellant here), assuming that he was in default for not having filed his replication on the May rule day, asked leave of court to file the replication, accompanying the application with affidavits tending to show that complainant's counsel had not been advised in time of the filing of the answer, and that no delay in the cause would be occasioned by reason

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of the failure to file the replication on the first Monday in May. This application was refused by the court, and thereupon the court, after reciting the application, made the following order:

' * * * And the court, having heard said motion, and being sufficiently advised, does now deny the same; and the defendant now, under equity rule 66, moves the court that an order be granted dismissing this suit; and the court, having considered said motion and the bill and answer in this cause, does now grant the same. It is therefore considered, ordered, and adjudged by the court that this suit be, and the same is, now dismissed.'

This action of the court was erroneous. The rule of practice is laid down in Daniell, Ch. Pl. & Prac. p. 765, as follows:

'After the filing of a defendant's answer, the plaintiff has six weeks within which he may file exceptions thereto for insufficiency; and, if he does not file these within six weeks, such answer, on the expiration of the six weeks, will be deemed sufficient.'

On page 833, this author says:

'Replication must be filed within the time following: Within four weeks after the answer, or the last of the answers required to be put in by a defendant, is held or deemed to be sufficient.'

The supreme court, however, has regulated this whole matter of practice in equity.

Rule 61 declares that: 'After an answer is filed on any rule day, the plaintiff shall be allowed until the next succeeding rule day to file in the clerk's office exceptions thereto for insufficiency, and no longer, unless a longer time shall be allowed for the purpose, upon cause shown to the court or a judge thereof; and if no exception shall be filed thereto within that period, the answer shall be deemed and taken to be sufficient.'

Rule 66: 'Whenever the answer of the defendant shall not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto on or before the next succeeding rule day thereafter; and in all cases where the general replication is filed, the cause shall be deemed, to all intents and purposes, at issue, without any rejoinder or other pleading on either side. If the plaintiff shall omit or refuse to file such replication within the prescribed period, the defendant shall be entitled to an order, as of course, for a dismissal of the suit; and the suit shall thereupon stand dismissed, unless the court, or a judge thereof, shall, upon motion, for cause shown, allow a replication to be filed nunc pro tunc, the plaintiff submitting to speed the cause, and to such other terms as may be directed.'

-- From which it is manifest that the complainant had until the May rule day to determine whether or not he would file exceptions to the answer. Failing to take exceptions, the answer stood admittedly sufficient. He then, however, had until 'the next succeeding rule day thereafter,' which would have been the first Monday in June, in which to file his replication. Counsel for appellee, at the hearing, sought to avoid this manifest effect of the rule with the suggestion that 'consensus facit legem, communis error facit jus. ' But we do not think this maxim is applicable to this instance. The rule in question is a rule of right which it was the duty of the court to recognize and apply, notwithstanding both counsel may have misapprehended its meaning. This is especially so in view of the manifest purpose of this rule, which is intended to expedite the trial of the cause. So, it is the customary course of procedure in equity cases that, where a short delay in filing the replication does not have the effect to retard the taking of testimony and the bringing on the hearing, the filing

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of the replication out of time is and should be generally indulged. This cause, even had the replication been filed on the first Monday in May, would not have stood ready for trial on the 10th day of May, or even at that term; as the taking of testimony had not been completed, and in due course of proceeding the cause would not have come on for final hearing perhaps until the fall term of 1897.

Notwithstanding, however, this error of the court, this cause should not be remanded, with directions to the court to permit the filing of a replication as of the date when the application therefor was made, and before this court it is manifest that the complainant is not entitled to the relief sought by the bill. With this in view, counsel for both parties, as if by common consent, have fully argued the law on all the undisputed facts presented by this record. So that if, in the opinion of the court, the complainant must ultimately fail, it will avoid labor and costs to the parties for this court now and here to pass upon the questions of fact and law involved. To fully comprehend these questions, a somewhat detailed statement of the history of this case, as disclosed by the bill and affidavits, and exhibits presented therewith, is rendered necessary.

The Syndicate Improvement Company, a corporation, created under the laws of the state of Wyoming, was organized in 1891. On the 24th day of November, 1893, the appellee, Bradley, instituted an action in assumpsit in the state court in said Natrona county, to recover of said company claims for services alleged to have been rendered the company as its employe, counting in one count on contract, and in another on a quantum meruit. The company defended, on the principal grounds that whatever contract or arrangement the plaintiff had was made with one Weir, who, although president of this company, was largely interested as a principal shareholder therein, and in various other like, but independent, enterprises in that state and elsewhere; and that said Weir employed said Bradley as his personal agent, the better to protect his (Weir's) interest in the Syndicate Company, and to advance his other enterprises. The answer alleged that Weir had paid Bradley for his services in full, and that the company had no contract with Bradley, and was not indebted to him in any sum whatever. In May, 1894, when this cause came on for trial, the defendant company made application for, and obtained, a continuance, principally on account of the absence of said Weir, a material witness, who, it is claimed, had said contract and evidence of said settlements, and also on account of the absence of one Green, who held certain receipts. When the next term of court came on, the defendant company moved for a change of venue against the judge of the court, and it seems to have been understood that the presiding judge would transfer the cause for hearing before another judge. But no order to the effect seems to have been entered of record. The company's counsel, it may be conceded, understood and acted on the assumption that said other judge would try the case. Between that and the succeeding term of court, coming on in the spring of 1895, the presiding judge of the district court of Natrona county died, and his successor was thereupon appointed and qualified. When the term thereafter came

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on, in the spring of 1895, this newly-appointed judge assumed jurisdiction of the case. At that term, when the cause came on for hearing, the principal counsel for the Syndicate Company was absent, engaged in another court, under the impression that said cause was to be tried by the judge of another district, to whom he understood it had been transferred, as aforesaid. The junior counsel for the company was notified on the day the cause was reached on the docket that it would be tried by the then presiding judge of the district court, and he appeared only to object to the trial proceeding, on the ground of the understanding aforesaid and the absence of said principal counsel. The cause, nevertheless, then went to trial on motion of plaintiff's counsel, and without participation therein on the part of the defendant's counsel. Judgment was rendered therein for plaintiff May 18, 1895, for $4,125.29. Thereupon the defendant duly presented its motion for a new trial, assigning as a ground therefor the action of the court in trying the case against the protest of defendant, and in violation of the alleged understanding between the defendant's counsel and plaintiff's counsel and the judge of the other district, who was supposed to have undertaken the hearing of the cause. This being overruled, defendant sued out thereon a writ of error to the supreme court of the state; and on the 8th day of January, 1896, the supreme court affirmed said judgment. 43 P. 79.

It is conceded on...

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