Duncan v. Carson

On a Petition for Rehearing, Richmond, November 18, 1920.

Per Curiam:

This case was very carefully considered on the original hearing, and, while some of the points were close and difficult, the result was the deliberate judgment of the court. A petition for rehearing has been filed in which counsel for the petitioner earnestly insist that the court has erred, both in its statement of the facts of the case, and in its conclusions of law, and we are asked “to lay aside the many technicalities of rule and reason which play so prominent a part in'arriving at its conclusions,” and to “consider upon its merits the only evidence of fraud brought out by the defendant.”

The prime object of litigation is to do justice between the parties. But this object is to be attained subject to *327such rules and regulations as have been found essential to the due and orderly administration of justice and the attainment of right ends in the great majority of cases. Absolute justice in every case is unattainable in human courts, and if the “technicalities of rule and reason” shall in exceptional cases bear hardly upon a litigant, it is a part of the price he has to pay for being a member of organized society. We have said this much on the subject simply in reply to the language of the petition, but we find nothing exceptional in this case. Neither do we find that the court has erred to the prejudice of the petitioner as to its statement of facts or its conclusions of law.

The petition for rehearing sets up only two grounds of error not considered in the opinion on the original hearing. They are—

[24] 1. “In affirming a nunc pro tunc order of the lower court, under which a plea of the general issue was entered after the case had been fully tried and judgment entered for the plaintiff—neither the plaintiff nor his counsel having any intimation, during the trial, that the general issue was relied upon by the defendant.

“The effect of this retroactive order was to render testimony competent which, under the actual pleadings, was wholly incompetent.”

2. That the construction placed upon section 6365 of the Code makes that section act retroactively, contrary to settled legal principles, and that the judgment entered by this court was in the exercise of original and not appellate jurisdiction, contrary to section 88 of the Constitution.

[25] We shall deal with these in their order. Before considering the orders made in the cause, it must be recalled that the object of a nunc pro tunc order is to make the record show something which actually took place at a former day of the court, but which the record does not disclose. It is not to permit something to be done which *328was omitted, by oversight or otherwise, but to show what was in fact done, and to cause the record to speak when it was previously silent. When it thus speaks, it is record evidence of the fact stated and is indisputable. So, in the case in judgment, when the nunc pro tunc order states that the general issue was pleaded at the April term of the court, it is an indisputable fact that it was so pleaded.

The ordinary practice on a demurrer to the evidence is for the jury to render their verdict, and for the demurrer •to the evidence to be argued at the same term at which the verdict is rendered, while the evidence is fresh in the minds of the court and counsel, and the court either decides the demurrer then or takes time to consider of its judgment. Of course, there are cases where the argument on the demurrer is deferred to a later time, but such cases are by agreement of counsel with the assent of the court. But there is nothing in the record to show any such agreement, or assent. The order of July 18, 1918, recites the tender of the demurrer to the evidence and the joinder therein, and the verdict of the jury, and the order then concluded, “Whereupon the court takes time to consider of its judgment on the said demurrer to the evidence, and this case is continued to the next regular term of this court.” The order of November 2nd simply says that “the court having heard the argument of counsel upon the demurrer” to the evidence, doth decide, etc. There is nothing in the latter order to show when the argument was heard, whether at that term or at some previous day, and the language of the order is exactly what it would have been had the argument been at the Jufy term. The record does not show that the argument was at the November term. On the contrary, it rather indicates that the hearing was at the July term, as it is not to be supposed that the court, in a hotly contested case, would take the case under consideration before the argument of counsel on the demurrer was *329heard. The language of the opinion of the court on that subject is well warranted by the record.

[26] It is stated in the opinion that the nunc pro tunc order was entered while the case was being argued on the demurrer. This was error, but immaterial and harmless, as the order of November 2nd shows that the petitioner “tendered the affidavits of F. T. Sutton, Jr., and J. Kent Rawley that no notice of the tender of such plea or the entry thereof was had by them until after the verdict of the jury and the case was being argued- on demurrer to the evidence.” (Italics supplied.) A defendant is not required to give notice of the time and place of filing his pleas, but, waiving this suggestion, the plaintiff had notice in ample time to have withdrawn his demurrer to the evidence if he had desired so to do, and having failed to do so, he cannot now be heard to say that he was taken by surprise or injured by the effect of his voluntary inaction in the premises. The fact that counsel had no notice till after verdict of the jury was wholly immaterial. On a demurrer to the evidence the jury do not pass on the merits of the case at all, nor on the liability of the parties, but only fix the amount of the damages, subject to the opinion of the court on the question of liability.

The whole defense on the subject of fraud in the procurement of the contract was set forth in the written grounds of defense of the defendant, which were filed in the papers in the cause May 17, 1918, and.are as follows:

“(1) That in order to obtain the said notes from the said defendant there was executed and delivered to him before the delivery of said notes a written contract whereby it was agreed that the said stock would be taken off his hands within eleven months from the date thereof, paying him therefor the sum of $5,625.00, on which said contract the said defendant relied, was material to his subscription and was the inducement therefor. That the said contract *330was made for the sole purpose of deceiving and defrauding the said defendant; that neither the said plaintiff, the Carson Manufacturing Company, of which he is president, nor the agents thereof, ever intended to comply with said contract, are not able to do so, and will never comply therewith; that, they have been repeatedly called-upon by the said defendant to fulfil the same, and have refused to carry out the same.
“(2) That there was no consideration of value given to the said defendant for the said notes.
“(3) That the said notes sued on were obtained from the said defendant by fraud, deception and misrepresentations, which were believed and relied on by the said defendant.
“(4) That the said defendant was induced to execute and deliver said notes by false, fraudulent, misleading and deceptive representations and statements made to him at-the time of the execution of said notes for the purpose of securing the said notes from him, which said statements and representations he believed to be true and relied thereon, and were the inducement for thfe execution and delivery of said notes.
“(5) That the said plaintiff was the president of the said Carson Manufacturing Company at the time the notes were obtained from the said defendant, and is not a holdér in due course.
“(6) That the ten per cent, attorneys’ fee demanded by the said plaintiff is exorbitant and illegal.”

In the opinion it is stated: “If the evidence admissible under the general issue, but not under the grounds of defense, is offered and. received without objection, and there is no motion to strike it out, objection to its admissibility is thereby waived, and it may be considered by the jury.”

Counsel for the petitioner say, “We think the record *331(pp. 74-75) will satisfy the court that counsel did object both to the questions that brought forth this testimony, "and the testimony itself.” Turning to the record we find the following:

“Question by Mr. Hiden, counsel for the defendant:
“Please state, Mr. Duncan, how they told you these notes would be handled by this corporation?”

This question was objected to on the following ground:

“The notes speak for themselves. They distinctly say 'without offset’; they distinctly state there will be a payment at a bank at a certain time; they are complete in every respect, and to contradict the writing of the signature of E. P. Duncan by mere parol testimony is improper and should not be admitted.”

After a running colloquy between Mr. Hiden and the court, the frame of the question was changed, and Mr. Hiden asked:

“What, if anything, did these gentlemen tell you at the time you executed those notes which led you to execute them?
The Court: “That question is alright so far as its form is concerned.”
Mr. Sutton: “Woúld it not be much fairer to both sides to let the question be framed this way: Please state what was the inducement, if any, held out to you to make these notes?

Mr. Hiden thereupon propounded the following question:

“What statements, if any, were made to you by Allen and Seals, which induced you to execute and deliver said notes which are in action?”

Mr. Sutton, counsel for the plaintiff, objects. The court admits the question and exception is noted.

[27] If we look at the two objections noted above by Mr. Sutton, it will be found that the first one was placed on the ground that the parol evidence would contradict *332the writing and was, therefore, inadmissible. No objection was made to the evidence on the ground that it was not within the pleadings. Looking at the second objection, no ground is assigned. It is well settled that a general objection to testimony is properly overruled if, the testimony is admissible on any ground. The evidence was admissible, as stated in the opinion, under the general issue, and no valid objection was offered to it.

The subject of the so-called general issue in a proceeding by motion for a judgment, and.the procedure thereon, is sufficiently dealt with in the original opinion. It is there also pointed out that the restrictions placed upon the scope of such issue by the statement of the grounds of defense may be waived, and were waived in the case at bar. As the general issue was pleaded, it is unnecessary to pass upon the enlargement of pleadings, by failure to object to evidence not strictly within the issues made by other pleadings. But see Newberry v. Watts, 116 Va. 730, 82 S. E. 703; Va. Iron, etc. Co. v. Hughes, 118 Va. 731, 88 S. E. 88.

[28] ■ Coming now to the second error assigned in the petition for rehearing, based upon the construction placed upon section 6365 of the Code. Prior to the enactment of this section of the Code, the law required the appellate court to enter such a judgment as the trial court ought to have entered, and if that rule had been still in force it would have been the duty of the court to have entered judgment for the defendant instead of for the plaintiff. The change of the law, however, required the court to enter such judgment, decree or order as to the appellate court, should seem right and proper, which was done in this case. Section 6365 of the Code relates entirely to procedure in the appellate court, and was in force when the opinion in this case was rendered. The case of Wilson v. Hundley, 96 Va. 96, 30 S. E. 492, has no bearing upon the question here presented.

*333Counsel for the petitioners are mistaken in supposing that the case of Mangus v. McClelland, 93 Va. 786, 22 S. E. 364, and other cases of that class, have any bearing upon the question of reinvesting a vendor with title to property. That class of cases relates wholly to sales of real estate. The sale in this case was a sale of personalty, and the judgment for the defendant annulling the sale ipso facto reinvested the vendor with the title to the stock. This subject is fully discussed and the authorities on the subject cited in Burks’ Pl. & Pr., sec. 239, and what is said in the opinion was merely out of abundant caution and to avoid any misapprehension on the subject. Section 6365 of the Code does not confer any original jurisdiction upon the court and none was exercised by it. Its enactment was clearly within the legislative power.

Other asignments of error in the petition for rehearing need not be noticed as they are either fully dealt with in the opinion or are not within the grounds of demurrer to the evidence assigned by the plaintiff. Section 6117 of the Code requires a party tendering a demurrer to the evidence to state in writing specifically the grounds of demurrer relied on, and provides that no ground of demurrer other than those specifically stated shall be considered.

We have carefuly reviewed the record of the case in the light of the petition for rehearing, and see no reason to change the opinion originally delivered.

Reversed.