Garrett v. Trotter

• Decision Date: 30 June 1871
• Citation: 65 N.C. 430
• Parties: ELIZABETH O. GARRETT v. ABRAM TROTTER and JEREMIAH FIELDS.
• Court: North Carolina Supreme Court

65 N.C. 430

ELIZABETH O. GARRETT

v.ABRAM TROTTER and JEREMIAH FIELDS.

Supreme Court of North Carolina.

June Term, 1871.

Whether in a complaint for the recovery of realty, it is sufficient to allege that the defendants are in possession of the locus in quo, and withhold the possession thereof from plaintiff. Quere?

Assuming that the complaint is defective, advantage ought to have been taken thereof in “apt time,” and it cannot be considered “apt time,” to have filed an answer to the merits, and make the objection at the trial term.

Such a complaint is sufficient, and the defect, if any, is aided by the defendants' answer, which shows that they understood the complaint to charge an illegal withholding of the possession.

The doctrine of aider, express or implied, and the principles applicable to defective pleading discussed and explained. Love v. Commissioners of Chatham, 64 N. C. 706, cited and approved.

Action for the recovery of realty, tried before Tourgee, J., at Fall Term, 1870, of GUILFORD Superior Court.

The plaintiff alleges in her complaint, that she is seized for life of certain premises, describing them with sufficient certainty.

In article II of the complaint, she alleges that the defendants are in possession thereof and withhold the same from her. Then she demands judgment for the possession of the premises, and for one hundred dollars as damages sustained, &c.

The defendants in their answer admit that the plaintiff is the owner of the locus in quo, but “deny they withhold the same illegally.” They also aver that they are entitled to the land for three years commencing in January, 1868, by virtue of a lease made to the defendant Fields by the plaintiff. The pleadings were filed at Spring Term, 1869.

When the cause was reached for trial, and before the jury were empanelled, the defendants objected to the hearing of any testimony on behalf of the plaintiff against the defendants, because said complaint omitted to set forth, “that the defendants were wrongfully and unlawfully in possession of the premises described in the complaint, and wrongfully and unlawfully withheld the same from the plaintiff.”

The said objection being considered by the Court, it was ordered that said action be dismissed. Judgment and appeal.

Dillard & Gilmer and Mendenhall, for plaintiff .

Scott & Scott and Ball & Keogh, for defendants .

PEARSON, C. J.

It appears by the record, that the controversy between the parties is in regard to a lease for a term of three years, which the defendants allege the plaintiff made to Fields.

This allegation is denied by the plaintiff, issue is joined and comes on for trial; but a motion is made by the counsel of the defendants in medias res, and the action is dismissed, without the merits of the case being touched.

The first reflection suggested by this state of facts must be under a Code of Civil Procedure, professing its main object to be, to have every case decided ““upon the merits,” and to this end abolishing the distinction between actions at law and suits in equity, and all the forms of such actions and suits, C. C. P., sec. 112; abolishing all the forms of pleading heretofore existing, sec. 91; declaring no variance shall be deemed material, unless it has actually misled the adverse party in maintaining the merits on his side, sec. 128; and allowing amendments on a scale so liberal that it may well be said “any thing may be amended at any time;” for, before or after judgment, the pleading, process or judgment may be amended by “inserting other allegations material to the case,” and by “conforming the pleading or proceeding to the facts proved,” sec. 131, 132. How does it happen that a case could thus go off, without touching merits?

There is error on the grounds:

1. The complaint alleges that the defendants are in possession of the land, and withhold the same to her damage, one hundred dollars.

The answer admits that the detendants are in possession of the land, but deny that they withhold the same from the plaintiff, illegally, as is alleged in the complaint; and then avers the fact of a lease by her for a term of three years, which is unexpired.

Admit that the complaint is defective in this, it does not allege in so many words that the defendants illegally and wrongfully withhold the possession from the plaintiff; although as the the C. C. P. requires a statement of facts to be “plain and concise, without unnecessary repetition,” section 13; and a statement in “ordinary and concise language, without repetition,” section 100; it might well be questioned whether the complaint be defective in this particular. But supposing it to be so, the defect is aided by the answer, which shows that defendants understood the complaint to charge an illegal withholding of the possession.

“A defect in pleading is aided, if the adverse party plead over to, or answer the defective pleading in such a manner, that an omission or informality therein is expressly or impliedly supplied or rendered formal or intelligible.”

The following are a few instances of an express aider: In an action of debt on a bond, when the declaration specified no place at which the bond was made, it was held that a plea of duress, “ apud B.,” supplied the omission in the declaration, as such a plea contained a distinct admission that the bond was made at the place where the duress was. In an action for slander, when the declaration averred that the plaintiff was foresworn, without saying how, it was determined that this defect was aided by a plea of justification, which alleges that the plaintiff, who was stated in the declaration to be a constable, had taken a false oath at the sessions. And again in an action of trespass for taking a book, when the plaintiff omitted to state that it was his book, or that it was in his possession, and the defendant in his plea, justified the taking the book out of ...