Baker v. Sherman
| Decision Date | 17 November 1902 |
| Citation | 75 Vt. 88,53 A. 330 |
| Court | Vermont Supreme Court |
| Parties | BAKER et al. v. SHERMAN et al. |
Exceptions from Franklin county court; Tyler, Judge.
Action by Luther Baker and others against F. M. Sherman and others. From a pro forma judgment sustaining plaintiffs' demurrer to defendants' rejoinder, defendants bring exceptions. Reversed.
Argued before ROWELL, C.J., and TYLER, MUNSON, START, WATSON, and HASELTON, JJ.
George W. Burleson, A. A. Hall, and H. H. Powers, for plaintiffs.
Rustedt & LockHn, Farrington & Post, and Young & Young, for defendants.
MUNSON, J. Case for fraudulent representations in the sale of land; plea, the statute of limitations; replication, that a prior suit, seasonably brought, was terminated by an arrest of judgment on verdict for the plaintiffs' and that this suit was brought within one year thereafter; rejoinder, that the judgment of arrest was entered upon the exercise of an option given plaintiffs by a judgment order of the supreme court; rejoinder specially demurred to as amounting to the general issue. The rejoinder confesses in the usual form the proceedings alleged as preliminary to the judgment of the supreme court, denies that the judgment of that court was as alleged in the replication, and, after stating certain matters of avoidance, sets up the subsequent Judgment of the county court in terms which correspond with the allegation of the replication, but without formally confessing the judgment as alleged, or its finality. The rejoinder also shows, by way of avoidance, that the supreme court granted a new trial upon terms, and ordered an arrest of judgment if a new trial upon those terms was not desired; that, in the vacation following the entry of the case on remand, the plaintiffs, by notice in writing, declined to accept a new trial on the terms imposed, and elected to have judgment arrested; and that the judgment afterwards entered in the county court was rendered in pursuance of that election.
The only point made by the plaintiffs is that the rejoinder amounts to a general denial. It is said that the replication sets up the termination of the former suit by an arrest of judgment, and that the rejoinder does not confess and avoid this allegation, but alleges that the suit was terminated in a different manner. We think this view of the rejoinder is incorrect. Its allegation of the judgment of the county court is identical in substance with that of the replication, and its recital of the proceedings shows that the judgment was one necessarily final. It is not essential that the confession be made in terms. It is said in Chitty that a plea of avoidance must contain either an express or an implied admission that the allegations replied to are true. It was considered in Blood v. Adams, 33 Vt. 52, that the question was whether the language of the plea could fairly be construed as an admission of the act complained of. It is clear that the allegations...
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Webster v. State Mut. Fire Ins. Co.
...that this replication does sufficiently confess and avoid by implication, which is just as good as an express confession. Baker v. Sherman, 75 Vt. 88, 53 Atl. 330. The question is whether the language can fairly be construed as an admission of the facts alleged in the plea. Blood v. Adams, ......
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Ella G. Webster v. State Mutual Fire Insurance Co.
...that this replication does sufficiently confess and avoid by implication, which is just as good as an express confession. Baker v. Sherman, 75 Vt. 88, 53 A. 330. question is, whether the language can fairly be construed as an admission of the facts alleged in the plea. Blood v. Adams, 33 Vt......
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Dundevy v. Fenton
...at least an implied admission that the allegations to be avoided are true. Duuklee v. Goodenough, 65 Vt. 257, 26 Atl. 988; Baker v. Sherman, 75 Vt. 88, 53 Atl. 330. It follows that a plea of confession and avoidance which in effect denies the existence of the claim it opposes is defective. ......
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Katherine G. Dunlevy v. Edward J. Fenton
...must contain at least an implied admission that the allegations to be avoided are true. Dunklee v. Goodenough, 65 Vt. 257; Baker v. Sherman, 75 Vt. 88. It that a plea of confession and avoidance which in effect denies the existence of the claim it opposes is defective. The plea rests upon t......