Perrin v. Mallory Commission Co.

• Decision Date: 26 March 1904
• Docket Number: Civil 848
• Citation: 8 Ariz. 404,76 P. 476
• Parties: E. B. PERRIN, Defendant and Appellant, v. MALLORY COMMISSION COMPANY, Plaintiff and Appellee
• Court: Arizona Supreme Court

76 P. 476

8 Ariz. 404

E. B. PERRIN, Defendant and Appellant, v. MALLORY COMMISSION COMPANY, Plaintiff and Appellee

Civil No. 848

Supreme Court of Arizona

March 26, 1904

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Coconino. R. E. Sloan Judge. Reversed.

The facts are stated in the opinion.

E. M Doe, and Joseph H. Kibbey, for Appellant.

E. E Ellinwood, for Appellee.

OPINION

DAVIS, J.

On the nineteenth day of March, 1903, the Mallory Commission Company brought an action in the district court of Coconino County against E. B. Perrin to recover upon a promissory note alleged to have been executed by the defendant to the plaintiff company. For his answer to the complaint, the defendant on April 15, 1903, filed a general demurrer only. This was the state of the pleadings when the ensuing term of the district court opened, September 21, 1903. On the second day of the term, and before the trial of said cause, the defendant served upon the plaintiff, and filed with the clerk, an amended answer alleging matters of defense in bar of the said action. Thereupon the plaintiff moved to strike this amended answer from the files because it set up for the first time matters in bar which were not pleaded and filed with the answer of April 15, 1903, and the plaintiff also asked for a judgment on the pleadings. The record shows that on September 25, 1903, the court overruled the demurrer to the complaint and granted the motion of the plaintiff. Judgment was rendered upon the pleadings in favor of the plaintiff, from which the defendant now appeals.

It is assigned that the court erred in striking the amended answer from the files, and in rendering judgment in the plaintiff's favor upon the pleadings. The case, we think presents but one question: Was the amended answer such an amendment as the defendant could file as a matter of right? No point was made against its sufficiency in allegations to state a defense to the action, but the ruling of the court was invoked and based solely upon the ground that the answer which contained the defense was not filed in the time and manner required by law. This necessarily leads to a consideration of several provisions of our statutes relating to pleadings and amendments which would seem to bear more or less directly upon the question which is here involved. Paragraph 1350 of the Revised Statutes of 1901 provides: --

"The defendant in his answer may plead as many defenses as he may have; but such pleas must be separately stated in one answer, filed at the same time and in the following order: (1) Denying the jurisdiction of the court. (2) In abatement of the suit. (3) To strike from the complaint irrelevant, redundant or uncertain matter. (4) To make the complaint definite and certain. (5) Demurrer. (6) In bar of the right to sue. (7) Denying the facts constituting the cause of action. (8) Set-off and counterclaim."

Paragraph 1288 provides: --

"All pleadings or proceedings may upon leave of the court be amended at any stage of the action within such time as the court may prescribe, or they may be amended before trial without such leave upon serving the adverse party with a copy of such amended pleading or proceedings."

Again it is provided in paragraph 1293 that "the court shall in every stage of an action disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect."

The only pleading of the defendant under our code is an answer. According to the system of pleading in general prevalence, a demurrer is not an answer, but rather a reason for not answering. In Arizona and Texas, however, a demurrer is treated as a defense, and is required to be pleaded in the answer. The provision of the Texas Code is as follows (Rev Stats. 1895, art. 1262): "The defendant in his answer may plead as many several matters, whether of law or fact, as he shall think necessary for his defense, and which may be pertinent to the cause; provided, that he shall file them all at the same time, and in due order of pleading." In Texas the courts have by construction determined what is "due order of pleading," and this has been done by recourse to the order of pleading by the defendant at common law. Our statute prescribes the order in which the defenses shall be stated. In Texas (Rev. Stats. 1895, art. 1188) "the pleadings may be amended under leave of the court, upon such terms as the court may prescribe, before the parties announce themselves ready for trial, and not thereafter." The courts of Texas do not hold that the failure to plead all defensive matters in the original answer precludes the subsequent pleading of an omitted defense, nor that the omission to plead said matters in their due order cannot be remedied by amendment. On the contrary, the provision with respect to amendments is construed with great liberality, and is made applicable alike to the pleadings of both plaintiff and defendant. It is the established practice there to permit the plaintiff to amend, within the period prescribed, by entirely changing his cause of action, and the defendant by setting up a new defense. Williams v. Randon, 10 Tex. 74; Smith v. McGaughey, 13 Tex. 464; Hopkins v. Wright, 17 Tex. 30; Irvine v. Bastrop, 32 Tex. 485; Rules, 47 Tex. 619; Lewis v. Alexander, 51 Tex. 578; McLane v. Paschal, 62 Tex. 102; Wiebusch v. Taylor, 64 Tex. 53; Woods v. Huffman, 64 Tex. 98; Merchant v. Bowyer, 3 Tex. Civ. App. 367, 22 S.W. 763; Gulf etc. Ry. Co. v. Butler (Tex. Civ. App.) 34 S.W. 756. Statutes of...