This case was originally brought by the appellee, Crolot, against the appellant, Maloy, before a justice of the peace of Santa Fe county, in the first judicial district, by attachment. The amount claimed as due him from the defendant is ninety-nine dollars.
No property of the appellant seems to have been attached, but one John Faber was summoned as garnishee, who appeared and acknowledged an indebtedness to the ajipellant in the sum of thirteen dollars. Both parties appeared before the justice. There is no record before this court showing that any pleadings were put in before the justice by either party, either oral or otherwise, except the affidavit of appellee for attachment, stating, among other things, that the appellant, Thomas Maloy, owes him, after allowing the just credits and offsets, the sum of ninety-nine dollars, which debt arose upon money which the said Thomas received belonging to the said Seferino Crolot, and a written plea of the appellant, not traversing the affidavit as to the alleged cause of action, constituting the indebtedness, but denying the statements in the affidavit as to the specific grounds for the attachment.
A jury having been waived, the 'cause was tried before the justice, who found and entered judgment in favor of the appellee, in the sum of sixty dollars, and costs.
From this judgment an appeal was taken to 'the district court for the first judicial district and county of Santa Fe, where the cause was tried de novo, before a jury, who rendered a verdict for appellee in the sum of ninety-nine dollars, and judgment for him in that sum and costs was entered accordingly. The case is here on appeal from that judgment.
The errors assigned are: First. There is no evidence to sustain the plaintiff’s claim. Second. The court below erred in ovenmling the motion for a new trial.'
The law of this territory governing proceedings in civil actions before justices of the peace specifically provide how-parties may form an issue to be tried. Section 23 of the act relating to justices of the peace, provides as follows : “Upon return of any process, each party may plead orally, but shall give a bill of particulars of his demand, if required by the justice or opposite party ”: Prince’s ed., Laws N. M., 89.
Section 13 of the same act provides that, “ every justice .shall keep a docket,” in which he shall enter among other things, “ a brief statement of the nature of the plaintiff’s demand, and the amount claimed.” Id., 88.
Section 36 of the same act provides for impanelling a jury to try the cause “ after issue joined.” Id., 92.
While the statute provides that the pleadings may be oral, and that the plaintiff’s cause of action shall be entered in the docket of the justice by a brief statement thereof, yet this is directory merely, and does not preclude the filing of written pleadings, setting out a cause of action by the plaintiff, and a denial thereof, or statement of any other defense by the defendant.
Though strict formality is not required in pleadings before a justice of the peace, and they are to be treated with great liberality with a view to substantial justice between the parties, yet the substance of an issue in some way must be formed : Phillips v. Bridges, 2 Wis. 270. The technical rules of common-law pleading can have no application to suits before justices of the peace: Bodenhamer v. Bodenhamer, 6 Humph., 264. In such suits, any allegations or indorsements in writing, or accounts sued on in whatever form they may be, if sufficient to apprise the opposite party of what is intended, and which would be sufficient to bar another suit for the same cause, should be considered good pleading. In the case of Stone v. Case, 13 Wend., 283, it was decided in effect that if the plaintiff’s statement of a cause of action in a justice’s court b'e objected to by the defendant as insufficient in substance to constitute' a cause of action, and the justice decides that it is sufficient, when in fact it is defective in substance, the judgment will be reversed. But this rule cannot be applied to judgments of justices of the peace in this territory, as whatever may be the errors in law committed by the justice in a case of which he has jurisdiction of the subject matter, on appeal to the district court the case must be tried on its merits de novo. On such appeal, however, the rule laid down in Stone v. Case, supra, would apply - if the defects in the declaration were not cured by amendment. As the case is to be tried de novo on such appeal, amendments would be allowed by the court. No pleading, oral or in writing, on the part of the defendant, is necessary to raise an issue on the plaintiff’s statement of a cause of action, as the general issue will be considered as in by law, and need not be formally pleaded: Howard v. Cobb, 6 Ind., 5; McHatton v. Bales, 4 Black, 63.
There is nothing, in the record before us showing that in the court below there were any allegations of the appellee on file, or any entry in the justice’s docket, showing that he had a cause of action, except that already stated as a part of his affidavit for an attachment made before the justice at the inception of the suit, to wit: a money demand of ninety-nine dollars, belonging to the appellee, and had and received by the appellant. This, though nowhere appearing in the proceedings, except in the affidavit, was a sufficient declaration on the part of the appellee, to authorize a trial, especially as no objection to its sufficiency was interposed by the appellant. If the appellant considered that he was not sufficiently apprised of the cause of action, he might have demanded a bill of particulars under the statute, or he might have demurred.
The evidence is all made a part of the record by a bill of exceptions, and is before us.
The evidence discloses the fact that the cause of action that was really tided was a demand of ninety-nine dollars for work and labor performed by the appellee for the appellant, and at his instance and request. There is no evidence whatever to support the claim for money had and received. Is this good ground for reversing the judgment if there is sufficient evidence of work and labor performed by the appellee for .the appellant, and unpaid for, to sustain the verdict, had that been the issue ?
We are of the opinion that it is not. The conduct of both parties during the whole trial was such as to amount to an abandonment, by mutual consent, of the original issue as to money had and received, and to the substitution of the issue for work and labor. This might be done though there were no formal pleadings, oral or written, to that effect. The appellant raised no objection to the evidence introduced by the appellee to support the claim for work and labor, but instead, thereof, introduced evidence in rebuttal upon that issue, and no other. J3y this, he must be considered as having accepted that issue, and as having waived any objections he might have urged against the competency of appellee’s evidence, to sustain his original claim for money had and received. It is clear, however, that had the appellant stood upon his rights and objected to such evidence as not being pertinent to the issue, and the same had been overruled, and the appellant forced to trial without any amendment of the pleadings, it would have been error and good ground for reversing the judgment.
The case of Allen v. Nichols, Jr., 68 Ill., 250, in some respects was similar to this. The plaintiff, before a justice, sued the defendant in trover for the value of a wagon, and recovered judgment in the sum of $40. On appeal to the circuit court, evidence of a witness was received without objection tending to show that the plaintiff, who sued as administrator of one Hiram Allen, deceased, was entitled to —not the value of the wagon sued for — -but the sum of $10, which the deceased, during his lifetime, had furnished towards paying for the wagon. The jury found a verdict in the circuit court in favor of the administrator for this $10, instead of for the value of the wagon in trover, which would have been, at least, $35. Judgment for the $10 was rendered by the circuit court after overruling a motion for a new trial. On appeal to the supreme court, that court refused to disturb the judgment, as no objection had been interposed to the evidence respecting the $10 claimed.
On this point the court said, “ Where evidence is received or a witness admitted without'objection, we must presume that all grounds of exception are waived, and having been waived, the party cannot afterward object.”
. The court, in that case, took occasion further to say that, “ In a justice’s court there are no pleadings, and it has been held by this court that the plaintiff is not required even to file an account in a suit before a justice of the peace; and on bringing an action in that court, if the plaintiff proves any grounds of recovery, he is entitled to a judgment, if the justice of the peace has jurisdiction of the subject matter.” This general doctrine thus laid down by the supreme court of Illinois is too broad to be applied to suits before justices of the peace in this territory under our present statute, except in cases where evidence is introduced without objection in reference to causes of action not embraced in any pleadings, but we quote the rule established in that state to show to what extent the courts have gone in their liberal construction of pleadings and proceedings in justice’s courts.
The evidence in the case now under consideration disclosing, as it does, the issue that was actually tried by the implied assent of the parties, and the same being a part of the record, the appellant is well protected against any future prosecution for the same cause. The testimony of the appellee in his own behalf, if true, is sufficient to sustain the verdict.
Such evidence is flatly contradicted by the testimony of the appellant, but it was the exclusive province of the jury to determine the weight and credibility of all the testimony. Such determination is not subject to review by this court.
The record discloses no error.
Judgment affirmed.
All concur.