Leyde v. Martin

• Decision Date: 01 January 1871
• Citation: 16 Minn. 24
• Parties: WILLIAM M. LEYDE v. ALPHONSO MARTIN and others.
• Court: Minnesota Supreme Court

Page 24

16 Minn. 24

WILLIAM M. LEYDEv.

ALPHONSO MARTIN and others.

Supreme Court of Minnesota.

Appeal by defendants from a judgment of the court of common pleas, Ramsey county, and from an order affirming the taxation of costs.

E. C. Palmer, for appellants.

Lampreys, for respondent.

McMILLAN, J.

It appears from the supplemental return in this case that on the eighteenth of March, 1868, by consent of the parties in open court, the action was referred to R. F. Crowell, Esq., who was appointed sole referee to hear and determine all the issues therein, and an order to that effect was entered in the minutes of the court. The order was a sufficient reference, and the entry thereof in the minutes of the court is sufficient evidence of the fact, at least in a proceeding in the same action. It was not necessary that the judge of the court should sign the order. The proceedings of the court in the action are shown by its records, of which the minutes of the court, kept by the clerk, are a part.

The second point made by the appellant is that the referee was not sworn. The report of the referee does not state whether the referee was sworn or not; it is silent upon that point. It was agreed by the attorneys of the parties respectively, upon the argument here, that, on the hearing, the court below did not receive or consider any affidavit from either party upon the fact. In the absence of evidence to the contrary, the presumption is that the referee was sworn. The objection is overruled.

The third point made by the appellant must be overruled. The delay in filing the report upon the part of the referee, and his subsequent absence, under the circumstances appearing in the affidavits used upon the motion, are not sufficient grounds for a new trial.

The fourth point urged by the appellant is that "the report of the referee shows that certain items of counter-claim, which were not denied by the reply, have been disallowed."

Attached to the complaint is a schedule containing a statement of the account, specifying dates, prices, and values, upon which the plaintiff's action is based, and which, by proper averments, is made part of the complaint. The complaint admits a credit upon the account in favor of the defendants amounting to $300, but contains no specification of the items of credit other than "by sundries on account, and small sums of money, in all $300." The defendant, in his answer, after taking issue upon certain portions of the plaintiff's account, as set forth in the complaint, sets up a counter-claim, which is also contained in a schedule made part of the answer, specifying the items, dates, values, and prices, respectively, constituting such counter-claim.

The reply of the plaintiff states: "First, said plaintiff denies each and every statement, averment, matter, and thing in said answer contained, and each and every part and portion thereof, whether as stated in said answer or otherwise, save as hereinafter stated, admitted, or qualified, and save as stated in his amended complaint in this cause." The reply, proceeding, refers to specific items of the counter-claim, admitting some of the items in part, and denying the remaining portions of such items; denying other items entirely, and omitting entirely to refer to a third class of items in the counter-claim.

It was held by this court in Kingsley v. Gilman, 12 Minn. 515, (Gil. 425,) that "a general denial, when it puts in issue the substance of the allegations to which it is addressed, is good; and that any language in an answer which clearly indicates the allegations to...