Carter v. Wallace
| Decision Date | 31 December 1847 |
| Citation | 2 Tex. 206 |
| Parties | AMSTED CARTER AND WM. G. HUNT v. JOSEPH W. E. WALLACE |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Colorado County.
In actions quare clausum fregit, the general issue, even by the English rules of pleading, is not a denial of the plaintiff's possession or right of possession in locus in quo; and in trespass de bonis asportatis, the general issue is only a denial of the trespass and not of the plaintiff's property in the goods.
In either action all matters of justification or excuse must be specially pleaded. This is an essential rule, intended to prevent surprise to the plaintiff at the trial, who, probably, would not be prepared on the plea of not guilty to meet the various grounds which the defendant might then for the first time set up in defense.
An observance of a rule of pleading so essential to a fair trial would be demanded more strictly here than in courts governed in their pleadings by the rules of the common law, because here each party is required by statute to state the facts relied on, as constituting his cause of action or ground of defense.
As the common law forms of pleading are not recognized in our system, there is no reason why distinct injuries, such as a trespass upon lands and a tortious taking and conversion of personal property, may not be joined in the same action. They are distinct, but not inconsistent rights of action, and the plaintiff may unite them together in one suit, as constituting his causes of complaint against the defendant, and may recover for one or both, according to his proof.
All of our actions, in a strict sense, are special actions on the case, but not so in a technical sense. They are actions in which the party asserts his right, according to the particular facts and circumstances of his own case, without regard to technical forms. They are adapted “to the specialty, reason and equity of his very case.”
It is not necessary, in an action for an unwarrantable entry or breach of the plaintiff's close, that special damage should be proved to entitle him to recover. Such entry or breach is supposed necessarily to carry along with it an injury.
The want of an averment of the value of the property alleged to have been taken and converted is cured by verdict. [5 Tex. 370;26 Tex. 76.]
Harris, for plaintiffs in error.
Gillespie, for defendant.
The points presented for the decision of this court, are stated in the opinion.
The defendant in error filed his petition in the district court, alleging that the plaintiffs in error, and defendants in that court, “did with force and arms enter your petitioner's close, lying and situated in the county aforesaid, and pulled down and removed from thence your petitioner's fence and converted the same to their own use;” by which he avers his “farming operations were retarded,” etc., and concludes by laying his damages at one thousand dollars.
The answer is a general denial.
The only questions which we think properly presented by the record for our consideration arise upon the refusal of the court to give a charge asked by the defendants, as follows:
“That if they, the jury, shall find that the fence was erected on the land belonging to Harrison's estate, which afterwards became the property of the defendants or either of them, without authority, and that the fence was standing on the land when it became the property of the defendants or either of them, they will find for defendants.
Or, if they shall find that defendants did not enter plaintiff's close and take away the rails or fence, they shall find for the defendants, etc.
The first branch of this charge embraces matters so entirely foreign to the pleadings as scarcely to require a particular notice.
In actions quare clausum fregit, the general issue, even by the English rules of pleading, does not operate as a denial of the plaintiff's possession or right of possession in the locus in quo; which, if intended to be denied, must be traversed specially. And in actions of trespass de bonis asportatis, the general issue operates only as a denial of the defendant's having committed the trespass alleged by taking or damaging the goods mentioned, but not of the plaintiff's property therein. 3 Tom. L. Dic. 665. This may formerly have been otherwise (8 Term, 403), but even at the common law, where the act complained of would, prima facie, appear to be a trespass, any matter of justification or excuse, or done by virtue of a warrant or authority, must in general be specially pleaded. 1 Saund. 298, note 1; 4 Pick. 127, 145. These, it has been said, are positive rules of law, in order to prevent surprise on the plaintiff at the trial by the defendant then assigning various reasons and causes of which the plaintiff had no notice, and which, consequently, he could not be prepared to meet at the trial on the plea of not guilty on fair and equal terms with respect to the evidence and proof of facts. 1 C. P. 539.
But whatever may have been the necessity at common law, with the broad defenses under its general issues, of specially pleading the matters sought to be set up by asking the charge in question, there can be no doubt they must have been specially averred here, where each party is required to state the facts relied on as constituting his cause of action or ground of defense, and for the reasons assigned in the authority just quoted.
If the defendants intended to justify under a paramount title in themselves, they should have alleged it. But the answer contains no averment of title in the defendants and no matter whatever in justification or avoidance.
The remaining proposition embraced in the charge seems to require a more particular notice. To determine whether it ought to have been given, it is material to ascertain with some precision what was the real subject of controversy as disclosed by the pleadings.
The petition is very carelessly and defectively framed. The action seems, in form, trespass quare clausum fregit; in substance,...
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