Steinhart v. Pitcher

• Decision Date: 01 January 1873
• Citation: 20 Minn. 86
• Parties: VINCENT STEINHART v. FRANCIS W. PITCHER.
• Court: Minnesota Supreme Court

20 Minn. 86

VINCENT STEINHARTv.

FRANCIS W. PITCHER.

Supreme Court of Minnesota.

Appeal by defendant from a judgment of the district court, Olmsted county.

The action was brought before a justice of the peace to recover a balance due for services. For one answer the

defendant set up a claim against plaintiff for wrongfully killing his horse. After a trial before the justice, plaintiff had judgment. On appeal by defendant to the district court, on questions of law and fact, the said portion of the answer was on plaintiff's motion struck out as not constituting a counter-claim, and, the answer substantially admitting the cause of action in the complaint, judgment was rendered for plaintiff on the pleadings.

Chas. C. Wilson, for appellant.

COPYRIGHT MATERIAL OMITTED

H. C. Butler, for respondent.

RIPLEY, C. J.

The defendant's "second answer" states a wrongful act on the part of plaintiff, which would render him liable in damages to the defendant. Conceding that it also states a promise by the plaintiff to pay the defendant in compensation therefor, on demand, what the horse was reasonably worth, such promise nevertheless appears to have been without consideration, for it cannot be gathered from the answer that the defendant released or agreed to release his right of action for such damages.

If A. has been guilty of a wrongful act or omission which would render him liable in damages to B., and he promises to pay B. a sum of money as compensation, this is a mere gratuitous promise unless it be made in consideration of B.'s releasing his right of action for such damages. Chit. Cont. (8th Amer. Ed. by Perkins,) 54; Smart v. Chell, 7 Dowl. 781, 786.

The answer, therefore, only states the defendant to have a good cause of action ex delicto against the plaintiff for damages. This is not a counter-claim in this action. Gen. St. c. 66, § 80, par. 2.

As to the proceedings in the justice's court, to which the defendant now for the first time takes exception, none of the matters to which he directs attention go to the jurisdiction. Supposing that the city marshal was not authorized to serve the summons, the defendant nevertheless appeared and went to trial on the merits without objection. This was a waiver, and the justice acquired jurisdiction of the defendant. Gen. St. c. 65, § 8; Rahilly v. Lane, 15 Minn. 447, (Gil. 360;) Lawrence v. Bassett, 5 Allen, 140; Low v. Stringham, 14 Wis. 242; Tyrrell v. Jones, 18 Minn. 312, (Gil. 281;) City of Rochester v. Upman, 19 Minn. 108, (Gil. 78;) Congar v. Chi. & G. R. Co. 17 Wis. 492.

The defendant makes the point on the authority of Roberts v. Warren, 3 Wis. 646, and Brown v. Kellogg, 17 Wis. 490, that the justice lost jurisdiction of the cause by omitting to enter the place of adjournment in his docket. The case of Brown v. Kellogg, at least, certainly so holds. "It is such entry, as well as the public announcement, which constitute the adjournment, and unless it be made the justice loses jurisdiction." We do not concur in this view of the matter. We are unable to see how, if he had jurisdiction of the parties and subject-matter, he could lose it by any neglect to keep his docket in the manner prescribed by statute.

Supposing, however, that the decisions of the Wisconsin court are to be followed on this point, we see no reason why we should not also hold with that court, that whatever might be the effect of a...