Waggoner v. White

• Decision Date: 30 September 1872
• Citation: 58 Tenn. 741
• Parties: Waggoner v. White.
• Court: Tennessee Supreme Court

58 Tenn. 741

Waggoner

v.White.

Supreme Court of Tennessee.

September Term, 1872.

FROM JOHNSON.

Appeal in error from Circuit Court of Johnson, March Term, 1872. E. E. GILLENWATERS, J.James T. Shields, for plaintiff in error:

This is an action for trespass instituted in the year 1865 by the defendant in error against the plaintiffs in error. The declaration contains two counts.

1. The first count is upon an alleged trespass upon the personal property of the defendant in error, and upon an assault and battery, and false imprisonment.

2. Upon an alleged trespass upon the personal property of the defendant in error.

To this declaration there was a demurrer. One of the grounds of demurrer is that several causes of action “are blended or improperly and illegally united,” which means that the first count in the declaration is double, and bad for duplicity. The demurrer was overruled.

The cause was put at issue on a plea of not guilty, and a trial had at the March Term, 1872, resulting in a verdict in favor of the defendant in error for $2,500 damages, on which judgment was pronounced, and also for over $500 costs.

A rule for a new trial was entered, continued until the next term, then discharged, and a bill of exceptions filed. We are precluded by the now well established rule from showing from the bill of exceptions that as against the parties against whom the judgment was pronounced the verdict is not sustained by the evidence. But we maintain that the demurrer to the first count of the declaration should have been allowed. It is clearly bad for duplicity. 1 Chitty, 226.

The Code in this respect has not relaxed the common law rule. The Code, sec. 2896, provides that the declaration may contain several statements or counts, but it does not provide that several distinct causes of action may be stated in the same count. The evil that would result from such a mode of pleading is very manifest. If it were admissible, it would result in intolerable confusion, and defeat the principal object and purpose of all pleading at the law--the production of single, certain, material issues, without unnecessary prolixity or delay.

We can illustrate the propriety of an adherence to the old rule by reference to the statute of limitations. The count is for two causes of action, the statute of limitation as to one is one year, as to the other, three years. We therefore submit that the demurrer to the first count should have been allowed.

The second count is for taking and carrying away personal property, which is stated upon the face of the declaration to be worth not more than $1,000, and the verdict of the jury is for $2,500; damages that are grossly excessive, and the judgment should be reversed on this ground.

Neal & Barton, for defendants:

At the March Term, 1872, of the Circuit Court of Johnson, defendant in error recovered judgment in this action of trespass against Thomas Sutherland, David Wagner, John Hays and William R. Barry for $2,500 and costs. David Wagner and W. R. Barry entered a motion for a new trial, which was continued until the next term. This motion was overruled at the July Term, 1872. Their bill of exceptions was signed and sealed by the court July 18, 1872, during the term after the trial. The bill of exceptions can not be noticed in this court as part of the record. Girdner v. Stephens, 1 Heis., 280, and other cases since decided.

The case is here only on the special demurrer to the declaration, which raises only one question worthy of notice. The declaration is in trespass, and alleges that defendants broke and entered the close, aroused the family, assaulted and imprisoned the plaintiff, entered the dwelling house, took various specified articles of personal property, and also, without any just or reasonable cause, imprisoned the plaintiff for thirty days, during which time they removed him to Bristol, and thence to Abingdon, where he was handcuffed, etc. And the question is, can all these allegations be embraced in one count?

In a note to 2 Greenl's Ev., sec. 624, it is said that “originally every declaration in trespass seems to have been confined to one single act of trespass. When the injury was of a kind that could be continued without intermission from time to time, the plaintiff was permitted to declare with a continuando, and the whole was considered as one trespass. In more modern times, in order to save the trouble and expense of a distinct writ, or count, for every different act, the plaintiff is permitted to declare, as is done in this case, for a trespass on divers days and times between one day and another, and in that case he may give evidence of any number of trespasses within the time specified. Such a declaration is considered as if it contained a distinct count for every trespass.” See also Smith v. Brazelton, 1 Heis., 49. By sec. 2747 of the Code, it is provided “all wrongs and injuries to the property and person, in which money only is demanded as damages, may be redressed by an action on the facts of the case.” The declaration in this case is a full statement of the facts of the case, showing how the plaintiff was injured in his person and his goods, for which he demands money in damages.

If there is any thing in the objection it is one of form and not of substance, and can not, after judgment, afford ground of reversal. See Code, secs. 2865, 2866, 2872, 2873, 2896, 2934, and 4516. Cornelius v. Davis, 2 Head, 99, 100.

There are two demurrers in the record, one on p. 26, and the other on pp. 23, 24. The vague entry on p. 26--“demurrer overruled and cause put at issue”--does not so identify the demurrer as to show whether it was to a declaration or plea, and should, after verdict, and especially in this court, under the above cited provisions of the Code, be regarded as having been abandoned.

FREEMAN, J., delivered the opinion of the Court.

This is an action prosecuted for the recovery of damages, for alleged trespasses, charged to have been committed in 1864. On a trial in the court below a verdict was rendered for $2,500, on which judgment a writ of error is prosecuted to this court. The only question presented in the case is on the action of the court in overruling a demurrer of defendants to the declaration. The causes of demurrer set out are, first, that trespass on the case, instead of trespass with force and arms, ought to have been brought, and then that divers causes of action are improperly joined together in this suit. The latter ground is the only one relied on or pressed in this court, and raises the objection of duplicity in a single count, or the allegation of several distinct causes of action being joined in the same count, to which different pleas might be pleaded, and whether such a count is open to the objection of a demurrer under our present system of pleading.

The declaration, after reciting a large amount of irrelevant matter by way of introduction, that need not be noticed, alleges that on the fourth day of June, 1864, the defendant, with force and arms, etc., broke and entered the plaintiff's close, situated in the county of Johnson, with a loud noise, and aroused plaintiff and his family from slumber, and then and there made an assault upon the said plaintiff in the peace of the State then and there being, and him the said plaintiff did then and there beat, abuse and ill-treat, and then and there forcibly and wrongfully entered the dwelling house of the said plaintiff, his family being therein, and unduly and unlawfully searched said dwelling-house, and then and there forcibly seized, took and carried away divers articles of personal property belonging to the plaintiff of great value, to-wit, one sorrel mare of the value of $150, one double barrel shot gun of the value of $30, one Colt's pistol, a pocket pistol of $20 value, silver money of value of $25, bank notes to the amount of $80, cow, and other articles,” etc., and then adds, “also with force and arms, and without any just and reasonable cause whatever, at to-wit on said day, then and there imprisoned the said plaintiff, and kept and detained him in prison for the space of thirty days, in which time they removed him to Sullivan county, and to Abingdon, Virginia, handcuffed him, kept him under guard, etc., and other wrongs and injuries did to him to his damage,” etc.

There is a second count in the declaration for conversion of the property mentioned in the first count, to which no objection is made. The first count of the declaration contains a...