Craig v. Cook
| Decision Date | 05 August 1881 |
| Citation | 9 N.W. 712,28 Minn. 232 |
| Parties | Ellen Craig v. Henry Cook |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for the counties of Stevens, Big Stone and Traverse, Brown, J presiding, refusing a new trial in case plaintiff should remit $ 900 of the verdict of $ 1,200 returned by the jury the order directing that unless plaintiff should, within ten days after notice, file such remittitur, and give notice thereof to the defendant, the verdict should be set aside. The plaintiff relinquished the $ 900, in compliance with the order.
Order affirmed.
Miller & Knappen, for appellant.
C. L Brown, for respondent.
The only pleadings in this case were the complaint and answer. Upon the trial the defendant moved for judgment, on the ground that the answer contained new matter, which, for want of a reply, stood admitted. The court denied the motion, and defendant excepted. The complaint alleges that on the 31st day of March, 1879, the plaintiff was lawfully and peacefully in possession of a certain hotel building, (described,) and that on that day the defendant broke and entered said house, and forcibly ejected her therefrom, without authority of law, and struck, beat and abused her, and threw her goods from said building into the street. The answer contains, first, a general denial of the whole complaint, and then further alleges that the defendant was, on the occasion referred to, and long had been, the owner in fee and in the actual possession of the real estate and premises described in the complaint; that the plaintiff was, by permission of defendant, stopping in the house as a mere lodger only; that at the time referred to in the complaint, the plaintiff forcibly and unlawfully undertook to evict the defendant from his premises, and to take possession thereof, and in so doing the plaintiff committed an assault and battery upon the defendant, who, in defending himself therefrom, used no more force than was necessary for that purpose.
A defendant is not entitled to a judgment by reason of the fact that new matter pleaded in the answer has not been replied to, unless such new matter constitutes a complete defence. "New matter constituting a defence" is not pleaded by averments which merely deny the allegations of the complaint, but only when they constitute a statement of facts, the proof of which avoids the legal conclusion otherwise to be drawn from the statement of facts in the complaint. It is in the nature of a plea of confession and avoidance. Pomeroy on Remedies, §§ 690-692. The answer in this case does not contain new matter constituting a defence to the action. The answer, without a reply, puts in issue the asserted right and possession of the plaintiff, and the trespass of the defendant, and upon such issue the plaintiff was entitled to go to the jury. The plea of title in the defendant is not inconsistent with a lawful and exclusive possession in the plaintiff, and, if admitted, would not entitle the defendant to a judgment. Therefore, the court was right in refusing the motion for judgment upon the pleadings.
The court did not err in refusing, upon the trial, to require the plaintiff to elect as between several causes of action which defendant then claimed to have been improperly joined. Assuming that the complaint alleges facts showing a right of recovery, both for trespass upon real property and for assault upon the person, it is clear that the case is within the statute authorizing the joining of causes of action for "injuries, with or without force, to person and property, or either." Gen. St. 1878, c. 66, § 118. If any remedy was desired for not stating separately what are claimed by defendant as distinct causes of action, it should have been, not by motion upon the trial to compel an election, but by motion at the proper time to make the complaint definite and certain, so that defendant might know whether the plaintiff intended to rely on one or all of the mingled causes of action, (Colton v. Jones, 7 Robt. 164;) or, perhaps, by motion for an order requiring the several causes of action to be separately pleaded.
Upon the trial of the cause, evidence was presented on the part of the plaintiff that, five days prior to the commission of the acts complained of, the defendant came to the building in question, and demanded that she vacate the same; that she refused, whereupon the defendant threatened to put her out and she in turn threatened him with legal proceedings; that he struck her and used insulting language to her; that she made complaint before a justice of the peace, and had defendant arrested for assault. After all this evidence, as it is presented in narrative form in the case, is recorded this objection: "Objected to as immaterial; objection was overruled, and defendant excepted." Upon the argument of the exception in this court, the defendant treats the objection as applying to all of this evidence. If this is a general objection to all of this evidence, it was not well taken, for a part of the evidence, at least, was relevant and material, not as a substantive ground of recovery, but as tending to show that the entry and other acts complained of as taking place five days afterwards, were the authorized acts of the defendant; for these threats of eviction were followed, as the evidence shows, or tends to show, by an entry into the premises, at the request of defendant, by a man who took part in evicting the plaintiff on the occasion referred to in the complaint. This evidence of threat of eviction contributed to prove that the person whom defendant sent upon the premises was sent there for the purpose of dispossessing the plaintiff. If the...
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