Norfolk & W. Ry. Co v. Coffey

• Decision Date: 26 September 1905
• Citation: 51 S.E. 729,104 Va. 665
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. COFFEY.

104 Va. 665

51 S.E. 729

NORFOLK & W. RY. CO.

v.COFFEY.

Supreme Court of Appeals of Virginia.

Sept. 26, 1905.

1. Pleading—Additional Pleadings—Filing in Vacation —Notice to Adverse Party.

Though there is no statutory provision authorizing it, the court may permit additional pleadings to be filed in vacation; but, when an additional pleading is so filed, the counsel of the adverse party ought to be given notice of the application therefor and an opportunity to resist it, or to procure leave to file other pleadings and make up the issue.

2. Same—Failure of Plaintiff to Reply to Plea—Application by Defendant fob Judgment.

Where a plaintiff fails to reply to a plea within the time prescribed by law or the order of the court, defendant should apply for a rule to compel him to do so, or, in default, to suffer judgment of non prosequitur.

3. Trial—Demurrer to Evidence.

After issue was joined on the plea of not guilty in an action for negligence, defendant obtained leave to file a plea of limitations, and liberty was granted plaintiff to reply. Defendant during vacation filed the plea, but no issue was taken by plaintiff. Plaintiff's counsel obtained for the first time on the argument of the demurrer to the evidence knowledge of the existence of the plea, and he was taken by surprise. Held, that the court of its own motion should have set aside the demurrer to the evidence and the award of damages thereon, and caused issues to be made up on the plea, and ordered a new trial.

4. Pleading—Defects—Statute of Jeofails.

The statute of jeofails does not, in an action at law, cure the nonjoinder or want of issue, and no verdict or judgment can properly be rendered therein.

Error to Circuit Court, Rockbridge County.

Action by one Coffey against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

E. M. Pendleton, M. McCormick, and Jos. I. Doran, for plaintiff in error.

G. D. Letcher, for defendant in error.

WHITTLE, J. The object of this action is to recover damages for personal injuries sustained by the defendant in error while at work as a laborer in the quarry of the plaintiff in error. A brief outline of the proceedings in the case is essential to an intelligent apprehension of the questions presented for decision.

After issue joined upon the plea of not guilty, the defendant obtained leave of the court to file pleas of the statute of limitations within 15 days from the date of the order; and liberty was also granted the plaintiff to reply generally or specially to said pleas. Accordingly the defendant, within the time prescribed by the order and during the vacation of the court, filed with the clerk two pleas of the statute of limitations; but no issue was taken upon them by the plaintiff. At a subsequent term, a jury was impaneled to try the issue joined; and at the conclusion of the tes timony the defendant demurred to the evidence, in which demurrer the plaintiff joined. Whereupon the jury assessed the plaintiff's damages at $2,000, subject to the opinion of the court on the demurrer to the evidence. During the progress of the trial, the defendant introduced evidence tending to prove that more than 12 months had elapsed between the date at which the plaintiff attained his majority and the institution of the action, and upon the argument of the demurrer to the evidence it was insisted that the right of action was therefore barred by the statute of limitations. To repel that contention counsel for the plaintiff presented an affidavit to the effect that he was ill at the time the defendant obtained permission to file the pleas in question, and knew nothing of the entry of the order or the filing of the pleas; that no record was made of the fact of such filing, either in the clerk's office or at the succeeding term of the court; that no rule was asked or awarded against the plaintiff, requiring him to reply to the pleas; that no issue was ever joined upon them; that the existence of the pleas and the fact that the statute of limitations was relied on by the defendant were for the first time made known to counsel on the argument of the demurrer to the evidence, and operated a complete surprise; and...