Addison v. Duncan
| Decision Date | 11 January 1892 |
| Citation | 14 S.E. 305,35 S.C. 165 |
| Parties | ADDISON v. DUNCAN et al. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Abbeville county; JAMES ALDRICH, Judge.
Action on a note by W. P. Addison against Richard Duncan and another. Plaintiff had judgment, and defendants appeal. Reversed.
Benet & Cason, for appellants.
Parker & McGowan, for respondent.
This was an action on a note, and the plaintiff in his complaint alleged-- First, the execution by the defendants to the plaintiff of the note sued upon, setting out a copy thereof; second, "that the plaintiff is still the legal owner and holder thereof, and that no part thereof has been paid, and there is still due and owing thereon" the amount mentioned in the note, with interest at the rate therein stipulated for. The defendants answered, admitting the execution of the note, and setting up as a defense (1) "that there was no consideration for the said note, but the same was given by mistake;" (2) setting out the circumstances under which the note was given, to-wit, for a balance supposed to be due on an old note, upon which a large amount was paid in cash, leaving, as was supposed, a balance still due thereon to the amount for which the note in question was given; but that an accurate calculation would show that there was in fact no balance due. Upon reading the pleadings, counsel for defendants claimed the right to open and reply, upon the ground that they had admitted the plaintiff's cause of action, as set forth in his complaint, and relied only on the affirmative defense set up in their answer. This claim was disallowed by the circuit judge, and the case proceeded to trial and judgment in favor of the plaintiff. The defendants appeal, alleging error in the refusal of their motion to be allowed to open and reply. It is stated in the case that the parties had agreed to submit certain questions as to the taxation of costs, upon which the circuit judge had ruled unfavorably to the plaintiff; but, as we have reached the conclusion that there must be a new trial because of error in refusing the motion of defendants to be allowed to open and reply, it would be premature to consider any question as to the taxation of costs until after final judgment under the new trial to be ordered.
The question as to which party is entitled to open and reply has always been regarded, in this state at least, as a material matter, and the practice upon the subject has long been regulated by rule of court. See rule 55, adopted in 1800; rule 53, adopted in 1814; rule 62, adopted in 1837, in Miller's Comp. pp. 18-25, 42; rule 59, (now of force,) adopted in 1879, p. 32,--the only change being that in the old rules the provision was that the defendant should be allowed this privilege "when he admits the plaintiff's case," whereas, in the present rule this is made more distinct by the addition of the words "by the pleadings." The only effect of this change was to make the rule conform in words to the construction which had been previously placed upon the language of the former rules; for, as may be seen by reference to the cases of Administrators of Gray v. Cottrell, 1 Hill, (S. C.) 38 Anon., Id. 252; Johnson v. Wideman, Dud. (S. C.) 325,--it was alway sheld that the rule should be construed as meaning an admission by the pleadings, and therefore, where the defendant pleaded the general issue, and at the trial admitted the plaintiff's case, he was not entitled to open and reply, because such admission was not of record.
The rule of court now of force being thus practically the same as before, decisions made under the former rule are applicable now; and, with a view to settle this point, we propose to review such cases upon the subject as we have been able to find, in addition to the cases cited by counsel. The first is Singleton v. Millet, 1 Nott & McC. 355, in which the action was trespass quare clausum fregit, to which the defendants pleaded liberum tenementum, and the plaintiff replied de injuria sua propria absque tali causa, and issue was joined thereon. Evidence was given on both sides as to the title, and the defendants claimed the right to reply, which was refused by the circuit judge. Held that this was error, because the defendant, having admitted the plaintiff's case, and tendered a new issue, was entitled, under the rule of court, to the reply. In Administrators of Gray v. Cottrell, 1 Hill, (S. C.) 38, the action was debt on a single bill; plea, general issue and unsoundness of a negro, part of the consideration of the bill. On the trial defendant admitted the execution of the single bill, and the real controversy was as to the soundness of the negro, in the course of which a question as to the competency of certain testimony was raised. Held, that the defendant was not entitled to reply, doubtless because (although no reason is given) the defendant's admission at the trial of the execution of the single bill was not an admission of record, for such seems to be the construction put upon that case by EVANS, J., in the case of Johnson v. Wideman, to be cited. In Anon., 1 Hill, (S. C.) 251, the action was for slander, to which the general issue was pleaded, as well as a plea of justification, which was put in by consent, provided the plea of the general issue was allowed to remain. The defendant's claim to open and reply was disallowed, because, as long as the plea of the general issue remained, it could not be said that defendant had admitted plaintiff's case of record; the court saying: "The defendant's right to the general reply in evidence and the reply in argument depended on the question whether he had by his pleading, made himself plaintiff in all the issues before the court." In Johnson v. Wideman, Dud. (S. C.) 325, the action was upon a note, to which the general issue was pleaded, though the real defense seemed to be that the negro for which the note was given was utterly worthless, and that the representations made by the plaintiff at the time of the sale to the contrary were false, and known so to be by the plaintiff. Some days before the trial defendant gave plaintiff notice that he would admit on the trial the plaintiff's cause of action, upon which the circuit judge held that defendant was entitled to open and reply. On appeal this ruling was reversed, solely upon the ground that the defendant had not admitted on the record plaintiff's case. In Moses v. Gatewood, 5 Rich. Law, 234, the action was slander, and the only plea was justification. Held, that defendant was entitled to open and reply. In that case WARDLAW, J., in delivering the opinion of the court, mentions, with obvious disapproval, the exception to the general rule upon this subject, established by the 15 judges in England in 1832, whereby the plaintiff is allowed the right to open and reply in all cases for personal injuries, as well as for libel and slander, even though the general issue may not have been pleaded, and there is only a special issue, the affirmative of which is on the defendant. What was said, therefore, by Mr. Justice McGOWAN in Burckhalter v. Coward, 16 S.C. 443, upon the subject of this exception to the general rule, must be read in connection with what is said by WARDLAW, J., in Moses v. Gatewood, supra. In Brown v. Kirkpatrick, 5 S. C. 267, the action was on a money demand to recover the amount of the proceeds of sale of certain goods sold by defendants for the account of plaintiff. The defendants answered, admitting all of the allegations of the complaint, and as an affirmative defense set up a counter-claim for the amount due them at the time of such sale for advances previously made to the plaintiff. Held, that defendants, having by their pleadings admitted the plaintiff's cause of action, and relying solely on their affirmative defense set up as a counter-claim, were entitled to open and reply. We do not find anything in that case to warrant the idea contended for the counsel for respondent, that the affirmative defense must be new matter, in the sense that it is in no way connected with the subject-matter constituting the plaintiff's cause of action. The whole point of that case, as it seems to us, is that, the defendants having admitted by their pleadings all the facts necessary to constitute the plaintiff's cause of action, thus superseding the necessity for plaintiff to offer any evidence, and relying solely for their defense upon affirmative allegations which it was necessary for them to prove, they thus became the actors, and were therefore entitled to open and reply. In Kennedy v. Moore, 17 S.C. 464, the action was on a note, a copy of which was set out in the complaint. The defendant answered, admitting that he did execute a note somewhat similar to that set out in the complaint, but denied that the note which he executed was correctly described or set forth in the complaint; and, on the contrary, alleging that the note which he had executed had been altered by the addition of words, found in the note as copied in the complaint, whereby the note which he had executed was converted into a note bearing interest payable annually, instead of a note bearing only simple interest. Held, that defendant was not entitled to open and reply, for the very obvious reason that, defendant not having admitted the plaintiff's cause of action as set forth in his complaint, he was bound to prove the note upon which he was suing, and hence was still the actor in the issue raised by the pleadings. In Boyce v....
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