Gale v. James

• Decision Date: 16 October 1888
• Citation: 11 Colo. 540,19 P. 446
• Court: Colorado Supreme Court
• Parties: GALE v. JAMES.

19 P. 446

11 Colo. 540

GALE v. JAMES.

Supreme Court of Colorado

October 16, 1888

Commissioners' decision. Appeal from Boulder county court.

This was an action to recover for labor and services rendered brought by W. T. James against Dennis Gale. There was judgment for plaintiff on the pleadings, and defendant appeals.

Owen & Stidger, for appellant.

DE FRANCE, C.

The appellee, James, sued the appellant, Gale, to recover the price and value of certain labor and services alleged to have been done and rendered by the former, between certain dates and in the capacity of a mining foreman, for and at the special instance and request of the latter. After alleging the amount sued for to be less than $2,000, the complaint proceeds as follows: 'That the defendant is indebted to the plaintiff in the sum of two hundred and ninety-four and 50-100 dollars and interest thereon at 10 per cent. per annum, from the 7th day of September, A. D. 1883, over and above all set-offs and counter-claims, on an account for work, labor, and services as a mining foreman, performed by the plaintiff for the defendant, at the special instance and request of the defendant, in Boulder county, Colo., between the 1st day of November, A. D. 1882, and the 7th day of September, 1883 both days inclusive; that no part of said sum or the interest thereon has been paid, though the principal became due September 7, 1883. Wherefore the plaintiff demands judgment against the defendant for the sum of $294.50, and interest thereon from September 7, 1883, and the costs of suit.' The original answer of the defendant was stricken out upon motion of the plaintiff, and an amended answer was filed, which is as follows: 'The defendant, answering to the plaintiff's complaint, says: (1) He denies that he owes the plaintiff the sum of two hundred and ninety-four and 50-100, or any sum whatsoever, on account or otherwise. (2) That he, together with Alex. Von Wendt, Thomas L. Drake, and Milo A. Smith, were jointly interested, and not otherwise, in working and mining upon a lode called the 'Alamakee,' situated in said county and state, and that as such joint owners, and not otherwise, they employed plaintiff to work and labor for them on said mine, and that there is now due said plaintiff for said work and labor from this defendant and his said joint owners the sum of two hundred and forty-four 50-100, ($224.50,) less of bill for lumber furnished said plaintiff, to be deducted from said sum of $244.50, amounting to $25, making the total amount due said plaintiff as aforesaid two hundred and nineteen and 50-100 ($219.50) dollars. (3) That the said Alexander Von Wendt, Thos. L. Drake, and Milo A. Smith are still living.' After the filing of this amended answer, the plaintiff moved the court for judgment. This motion was granted, and a final judgment was thereupon rendered against the defendant in favor of the plaintiff for the sum of $219.50, and for costs of suit, from which judgment the defendant has appealed to this court. The ruling of the court in striking the original answer from the files is assigned for error. The right to complain of this ruling was waived by filing an amended answer. The action of the court in rendering final judgment is also assigned for error, and this embraces all the errors which have been assigned, except the one disposed of above. The motion upon which final judgment was rendered is not incorporated in the bill of exceptions, yet it is but fair, perhaps, to presume that it was based upon, and is therefore a judgment upon, the pleadings.

Whether this judgment should be reversed or affirmed depends upon the sufficiency or insufficiency of the amended answer. This answer partakes of the nature of a plea in abatement. Our Code of Civil Procedure recognizes no plea in abatement as such, but subject-matter of that nature may be set up by way of answer. The first paragraph of this answer is but a denial of a conclusion of law. Such conclusion involves no element of fact, and therefore presents no issue. Pom. Rem. § 637 et seq.; Lightner v. Menzel, 35 Cal. 453; Millard v. Baldwin, 3 Gray, 484; Sapington v. Jeffries, 15 Mo. 628; Telegraph Co. v. Patterson, 1 Nev. 151; Baker v. Cordwell, 6 Colo. 199; Bliss, Code Pl. § 334; Watson v. Lemen, 9 Colo. 200 11 P. 88. The liberal construction for pleadings provided by the Code does not mean that courts shall supply a pleading bodily, or any substantial averment which may be wanting, or that they shall overlook or disregard the omission of a substantial averment. Spear v. Downing, 34 Barb. 523; Cruger v. Railroad Co., 12 N.Y. 201. The plaintiff used the common count for the complaint. This is permissible under our practice. Code 1877, § 64; Bliss, Code Pl. § 299; Leitensdorfer v. King, 7 Colo. 436, 4 P. 37. A denial simply of the legal conclusion stated in the common count, without denying the facts from which such conclusion is derived, does not fulfill the requirements of our Code practice. Watson v. Lemen, 9 Colo. 200, 11 P. 88; Bliss, Code Pl. § 334. And this is especially true if the effect or sufficiency of such denial be questioned by demurrer, or by motion, as in this case before trial or verdict, as a stricter rule of construction is then demanded. White v. Spencer, 14 N.Y. 247; St. John v. Northrup, 23 Barb. 26; Wall v. Water-Works, 18 N.Y. 119; L...