Henry v. Ohio River R. Co.
| Decision Date | 27 March 1895 |
| Citation | 21 S.E. 863,40 W.Va. 234 |
| Parties | HENRY v. OHIO RIVER R. CO. |
| Court | West Virginia Supreme Court |
Submitted January 31, 1895
Syllabus by the Court.
1. There cannot be an issue, where there is a plea of new matter, concluding with a verification, without a replication.
2. Where there is a plea of new matter, concluding with a verification, and the plaintiff fails to reply to it, there ought to be a judgment of non prosequitur against him, after a rule to reply, but such need not be served.
3. Such a judgment would not bar a second suit for same cause, it having the effect of a nonsuit.
4. Where there are two or more pleas, and one is good, though others be bad or found untrue, yet that plea defeats the action.
5. A plea introduces new matter, and concludes with a verification, and there is no replication to it or joinder in issue, but the case is tried on its merits upon the evidence including the evidence touching the defense set up in such plea, and a verdict found responsive to such plea, and no exception made to it on that score in the circuit court. This court will not reverse for this cause, especially at the instance of him who failed to file a replication.
6. A railroad company makes an embankment in a street on which to lay its track, and so negligently constructs it as to obstruct or close a culvert already there for passage of water, and by reason thereof at times water from rain or snow collects and floods an adjoining lot. Its owner may recover damages.
7. The statute of limitations in such case begins to run, not from the date of the building of the embankment, but from the time of the actual injury from the invasion of the lot by the water; the injury being in law recurring, intermittent, and continuous.
8. Permanent inju ry from private nuisance. When there must be recovery of past and future damages in one suit, and when repeated suits as injury recurs may be brought, discussed.
9. When the evidence tends in a fairly appreciable decree to sustain the plaintiff's action, the court must not strike out his evidence or direct a verdict for the defendant.
Error to circuit court, Mason county.
Action by Darius Henry against the Ohio River Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed.
Charles E. Hogg, for plaintiff in error.
V. B Archer, for defendant in error.
Darius Henry brought trespass on the case in the circuit court of Mason county against the Ohio River Railroad Company, and by direction of the court the jury found for the defendant, and judgment was rendered for it, and the plaintiff appeals. The suit was for damages to a lot and residence thereon, injured by an overflow of water caused, as alleged, by an embankment raised by the company, on which it laid its track.
A question of law in the case is this: The defendant pleaded not guilty, putting itself on the country, and issue was regularly joined on that plea. The defendant also filed a plea of the statute of limitations, but the plaintiff made no replication to it, and the want of such replication introduces trouble in the case. When this plea came in, being one of confession and avoidance, it demanded a replication either by way of traverse or confession and avoidance; but standing without replication, judgment should have been rendered upon it for the defendant, as it is a rule in the science of common-law pleading that a pleading introducing new matter must be met by demurrer or by some response of fact. There was an objection to the plea, operating as a demurrer, which was overruled, and the plea received; but there was no replication, and, standing unanswered, it alone called for judgment for defendant. This judgment is based on the ground, under the system of pleading, that the plaintiff, by failing to reply to the plea, does not further prosecute his suit. A suit may not reach an issue. It may be cut short by failure of one of the parties to pursue his litigation. As to the defendant, if he appears, and fails to demur or plead to the declaration, or if, after plea, he fails to maintain the course of pleading required of him by the law of pleading, judgment called judgment by nil dicit (he says nothing) is given against him. This would be a judgment quod recuperet, both final of the cause and conclusive in a second suit. On the other hand, judgment may be given against the plaintiff for not declaring, replying, surrejoining, or surrebutting, and these are called judgments by non pros. (non prosequitur,--he does not prosecute). Steph. Pl. 108, 109; 4 Minor, Inst. 866; Tidd, Prac. 730. This judgment of non pros. is a species of nonsuit, and does not bar another suit. The matter of the unanswered plea is not taken for true; for, if it were, the judgment ought to be one of nil capital, both final in the particular suit and a bar against another. It is based, not on the idea that the matter is true for all purposes, but only for failure to prosecute. It seems to be an unreasonable exception to that principle of the law of pleading which holds that whatever is well pleaded, and not denied, is taken to be true. 1 Saund. Pl. & Ev. 39. A much more logical principle would be to treat it as confessed, and render judgment final and conclusive, like the proceeding in chancery, where an answer is filed responsive to the bill alleging new matter, which, in absence of replication, is taken to be true, and final decree rendered upon it. Clegget v. Kittle, 6 W. Va. 542.
At first thought, such judgment might be regarded as both final in the cause and conclusive upon the matter in controversy as there is the declaration stating the cause of action, and the plea stating facts constituting a bar on its merits, and it remains unanswered, and we might expect a judgment of the law, which would ever be an end of controversy upon those facts; but such a judgment is not regarded as one on the merits, but only as a nonsuit, and, while final in the particular case, not conclusive upon the matter of action. It is treated as a nonsuit by 3 Bl. Comm. 296; by 4 Minor, Inst. 867; 2 Black, Judgm. § 702; 1 Freem. Judgm. § 261. Judge Summers regarded it as a nonsuit in Pinner v. Edwards, 6 Rand. 675. All authorities hold that a nonsuit does not bar a second suit for the same cause. The authorities just given say that a judgment on non pros. will not defeat a second suit. The question was fully discussed in Howes v. Austin, 35 Ill. 396, in a case where, just as in this case, the pleas were general issue, and a special plea in bar, and, the plaintiff failing to reply to the special plea in answer to a rule to reply, judgment was entered that the defendant go hence, not that the plaintiff take nothing by his suit. It was held to be a judgment of nonsuit, and not a bar to second suit. It was not necessary, before rendering such judgment of non pros., to wait for trial on the plea of not guilty; for there was the plea of the statute, and no replication, and it alone called for judgment ending the suit. If there be two or more pleas, one a good bar to the whole declaration, though others be bad, or found against the defendant, he is entitled to judgment on that plea. He may now plead several defenses, and, if one only be good, that is enough to defeat the action. 2 Tuck. Bl. Comm. 260; Steph. Pl. 273; Clearwater v. Meredith, 1 Wall. 25. If the plea were bad, such judgment would be improper; but this was the ordinary plea that the action accrued more than five years before suit, and was on its face good and properly admitted. But the trial went on, notwithstanding there was no replication to the plea of the statute, court and parties treating the case as though there had been an issue on it, probably by mere inadvertence. After the introduction of the plaintiff's evidence, the defendant, without giving any evidence, moved the court to direct the jury to find a verdict for the defendant on the plea and issue joined on the statute of limitations, and the court instructed the jury to find such verdict, and it was found. The plaintiff in error says this verdict should be set aside, because there was no replication, and therefore no issue on the plea of the statute of limitations. I thought at first that we might be able to say that there was an issue by the language of an order which says that the defendant moved the court to direct the jury to find for it "on the plea and issue joined on the statute of limitations," and thus treat the case as it was acted upon in the circuit court,--that is, upon issue properly joined; but I find no formal replication, or the informal one often resorted to, "And the plaintiff replies generally to said plea," which is simply entered in the order book, and, though informal, seems good (Railroad Co. v. Bitner, 15 W.Va. 459); and there is no reference to the joining of issue, save that incidental reference just quoted, and we cannot, by mere implication from it, create what should be directly and affirmatively stated, the filing of a replication and joinder of issue on it. And, at best, that language recognizes only an issue, not a replication; and replication is one thing, joinder of issue another, and from the mere recital in the record of the existence of an issue we cannot imply that without which no issue could exist, that is, a rejoinder. "Where a plea concludes with a verification, there cannot be a joinder of issue without a replication." Lockridge v. Carlisle, 6 Rand. 20; 1 Bart. Law Prac. 478, 480. In that case a statement on the record--stronger than in this case--that issue was joined on the special plea was held not to be sufficient. If the mere mention of an issue in the entry of said motion would be sufficient to show a replication, the statement in the record that...
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