Quimby v. Boyd

• Decision Date: 01 March 1885
• Parties: QUIMBY and others v. BOYD, Jr., and others.
• Court: Colorado Supreme Court

6 P. 462

8 Colo. 194

QUIMBY and others v. BOYD, Jr., and others.

Supreme Court of Colorado

March, 1885

Appeal from the district court of El Paso county.

W.J Sherman, for appellant.

Markham Patterson & Thomas, for appellee.

BECK C.J.

The first question demanding our consideration is whether the appellants, who were defendants below, were entitled to judgment notwithstanding the submission of the cause, without objection from them, to a jury for trial, and a verdict in favor of plaintiffs, for the reason that the new matter set up in their answer to the complaint was not put in issue by a replication. Under section 75 of the Code of Civil Procedure (Comp.1883,) the defendants were entitled to have every material allegation of their answer taken as true, since no replication was filed thereto. But counsel for plaintiffs contend that this right was waived by defendants, by their failure at any stage of the trial to call the attention of the court to the fact that no replication had been filed, and by their attempt to prove the affirmative allegations of the answer just as if the same had been controverted by a replication.

The truth of the above proposition is denied by counsel for defendants, who affirm that they sought to take advantage of the condition of the pleadings at every stage of the trial. They indignantly repel the insinuation that they themselves overlooked the fact that no replication had been filed, and that they are now raising this specific objection for the first time in this court. As proof to the contrary, they refer us to their motion for nonsuit entered at the close of plaintiffs' direct testimony; their instructions asked and refused; their motion for judgment notwithstanding the verdict; and their motion for new trial.

There can be no question that the answer contained new matter which the defendants were entitled to have taken as true, if not traversed by a replication. The complaint charged them with an illegal entry upon the Paymaster lode mining claim, the property of the plaintiffs, and of an unlawful appropriation thereof. The answer denied these allegations, and stated affirmatively that the premises in question had long been abandoned and forfeited by failure of the plaintiffs to perform the necessary annual labor required by law, and that at the time of the entry of the defendants the premises comprised a portion of the unoccupied public domain, and were subject to relocation. The answer alleges a valid relocation thereof by the defendants under the name of the "Monticello Lode."

In this state of the pleadings, unless the omission to file a replication was capable of being waived and was waived, there was no issue for a jury to try, and the result of the trial must be regarded as of no legal significance whatever. The defendants were entitled to judgment upon their answer, as held by Judge HALLETT in Newman v. Newton, 3 Colo.Law Rep. 193. No such judgment was asked, however, but the defendants went to trial just as if the issues were properly made up. We will say further, in this connection, that a critical examination of the entire record leads inevitably to one of two conclusions, to-wit: that the fact that no replication had been filed to the answer must have been overlooked by defendants' counsel; or that they must have sought to take advantage of the default without calling the attention of the court and of the opposite counsel to this specific fact. Otherwise, why was not a motion for judgment upon the pleadings interposed in the first instance, instead of voluntarily going into trial upon the merits? Why was not the specific defect now relied upon pointed out in the motion for nonsuit,--the motion for judgment notwithstanding the verdict, or the motion for a new trial? And why was not this defect in the pleadings alluded to in the instructions asked for the defendants? That some of the motions so interposed were broad enough to include the defect in the pleadings is not sufficient. The pleadings are not specifically mentioned in any of them, and the only allusion made to the pleadings during the whole course of the trial, so far as we are advised,--and this an indefinite allusion,--was made by way of objection on the part of the defendants to producing evidence in defense, upon the overruling of the motion for nonsuit. The only information given about this objection is that it was " to the sufficiency of the pleadings and proofs of the plaintiffs. " What the defect was does not seem to have been mentioned.

The only ground assigned in the motion for nonsuit is, "for the reason that there is no sufficient evidence to entitle the plaintiffs to recover." The rule governing motions of this character is that the precise ground of the motion must be stated. As said in Kiler v. Kimbal, 10 Cal. 268, the party should lay his finger on the point of his objection; or, as expressed in People v. Banvard, 27 Cal. 474, when a nonsuit is moved at the trial, the attention of the court and of the opposite counsel should be particularly directed to the supposed defects in the plaintiff's case. Defendants having elected to rest this motion on the ground of insufficiency of evidence, are now estopped to say that it should have been sustained on the ground of a defect in the pleadings. The two instructions prayed on the part of the defendants were based, one on supposed defects in plaintiffs' location certificate; the other upon insufficiency of their evidence to sustain a verdict. No effort to take advantage of the state of the pleadings is discernible here.

Of the right grounds assigned in the motion for a new trial but one could have reference to the point now insisted upon, viz.: "Because of error in law occurring at the trial and excepted to at the time by the said defendants." The allegation that the error was excepted to shows that it did not relate to a defect in the pleadings, for no ruling appears to have been made or asked concerning the pleadings, and for the same reason no exception was saved to any alleged error of law involving the sufficiency of the pleadings.

The grounds assigned in the motion for judgment notwithstanding the verdict are: "For the reason that upon the record plaintiffs are not entitled to recover; and, second, for the reason that the plaintiffs failed to prove a sufficient case for the jury." No error was committed in denying this motion. It cannot be said to have been based on defects in the pleadings, because they are not mentioned. It therefore assumes to be the usual motion for judgment non obstante reredicto, but this is not a proper motion to be interposed by a defendant, and the courts say that when so interposed it should not be entertained. In Bradshaw v. Hedge, 10 Iowa 402, the court says:

"A motion non obstante veredicto was only entertained by the courts under the former system of pleadings and practice, under a certain state of pleadings and findings by the jury; as when the defendant admitted the material allegations in the plaintiff's declaration, but joined issue upon some immaterial averment which was found by the jury for the defendant. It appears, however, that the courts have never entertained such motion when made by the defendant."

This case holds, and the decision is supported by authorities therein cited, that the proper motion for a defendant, when the verdict is for the plaintiff, is in arrest of judgment.

It is apparent, from an inspection of this record, that the defendants proceeded in all respects just as they would have done if the issues had been regularly formed. By introducing evidence to prove the affirmative allegations of their answer, they treated them as controverted, and put in issue, and it is now too late to raise the specific point, for the first time, that there was no issue to try. The objection has clearly been waived. In support of this conclusion we cite the following adjudications:

In McAlister v. Howell, 42 Ind. 16, the court says:

"There was no replication filed to the answer. But it has been held in numerous cases that an affirmative answer, where the cause has been tried without a replication, will be deemed to have been controverted on the trial, in the same manner as if a replication in denial had been filed."

In Hopkins v. Cothran, 17 Kan. 178, the same view is taken. The language of the court is:

"Now, it is true that said amended answer was not replied to, but still the case was tried in every respect the same as it would have been tried if a reply had been filed to the amended answer, and therefore we think the defendants waived a reply. * * * The attention of the court below was at no time specifically called to the fact that no reply had been filed to the amended answer." In California, a father sued a railroad company to recover damages for the death of his son, alleged to have been caused by the negligence of the defendant. A written release of all demand for damages was pleaded in bar. In such case it was necessary to deny the allegation by affidavit, in order to put it in issue, which was not done. But the plaintiff introduced evidence, without objection, to show that at the time he executed the release he was incompetent to contract, and the case was tried as if the execution of the release had been denied. The plaintiff recovered, and upon error assigned in the supreme court that the verdict and judgment were unauthorized, there being no issue for the jury to try, it was held that the defendant, having permitted the case to proceed as if an issue had been joined on the execution of the release, would not be allowed to take advantage of the admission in the pleadings. Crowley v. City R. Co. 60 Cal. 628.

The objection urged in this court for the first time to the form of...