Hopkins v. Woodward

Mr. Justice Breese

delivered the opinion of the Court:

This was an action of debt, in the De Kalb circuit court, on the record of a judgment alleged to have been rendered in favor of the plaintiff and against the defendant, by the supreme judicial court of the State of Hew Hampshire, held in and for the county of Cheshire, in that State.

The defendant, at the return term of the alias summons, entered his motion to dismiss the cause for want of a copy of the instrument declared on, which motion was denied and exception taken. Defendant then entered his motion for a rule on the plaintiff to file a copy of the instrument declared on, which motion was also denied, and exception taken.

Defendant then filed four pleas: 1. Nul tiel record. 2. Payment in full. 3. That the judgment described in the declaration was obtained by fraud. 4. Set off. On defendant’s motion the cause was continued to the next term, at which term the plaintiff replied to the plea of payment, traversing the same, and demurred to the third and fourth pleas. This demurrer was sustained, and leave given defendant to amend third plea. That plea, as amended, averred that the judgment described in the declaration was had and obtained by the fraud and covin of the plaintiff, and with the intent to defraud the defendant out of the sum of money in the declaration mentioned. To this plea there was a demurrer. The cause was then continued from term to term, at the defendant’s instance, to the June term, 1874, when a jury was waived by agreement, and the cause tried by the court, and judgment for the plaintiff for debt and damages.

To reverse this judgment the defendant brings the record here by writ of error, and assigns several errors, the most important of which are, in proceeding to trial and judgment without disposing of the demurrer to defendant’s third plea, in overruling the motion to dismiss the suit for want of a copy of the instrument sued on, and in refusing a. rule on plaintiff to 'file such copy.

The stress of the argument of plaintiff in error is placed on the first error above noted.

It may be admitted it was a technical error to proceed to trial, a demurrer to a plea being undisposed of, but it will be perceived there was no issue of law raised by the pleading, there being no joinder in demurrer. Cases can be found decided by this court in which it was held error to proceed to a trial under such circumstances. Other cases can be found in the same court, where it was held no error to proceed to trial when no issue of fact was made up.

Triable issues of fact had been made up in the case and submitted to the court.

In Granger v. Warrington, 3 Gilm. 306, this point was considered by the court, from which we quote: “ It appears from the record that plaintiff demurred to the defendant’s third amended plea, but to which the defendant did not join. It is now contended that this is error. If the defendant had joined in demurrer so as to have formed an issue of law, perhaps this would have been fatal. The defendant, however, by neglecting to join in demurrer, has not placed himself in a position to make any objection. He was in default in not presenting an issue which the court could decide.”

It is said by plaintiff in error, this case has been overruled, and reference made to Wen filing’s Index, 102. It does not so appear. The cases referred to in the index, 14 Ill. 90 and 16 ib. 61, sustain the case and are authority on the point made. But be that as it may, we cannot avoid seeing the plea as it stands in the record, to which the demurrer was interposed, and we cannot fail to come to the conclusion that the plea would have been adjudged bad had there been a joinder in demurrer. The plea is bad in not setting out the facts in which the fraud and covin consisted. There are many fraudulent and co vinous devices in human transactions, but no man, however honest he may be, can be prepared to defend against a charge so general. We are aware it has been held by a distinguished court, that such plea so general as this is a good plea. Sherwood v. Johnson, 1 Wend. 444. But we cannot concur in this view. This court held at this term, in the case of Beattie v. Nickerson, that a replication of fraud generally to a plea of the statute of limitations, was bad in not setting out in what the fraud consisted. So in a plea of fraud and circumvention in obtaining the execution of a note, the facts constituting the fraud and circumvention must be averred. Sims v. Klein, Breese, 302. So a plea averring that the consideration of the note sued on has wholly failed, without averring wherein, is bad. Poole v. Vanlandingham, ib. 47; and so alleging a failure of consideration. Taylor v. Sprinkle, ib. 17; Parks v. Holmes, 22 Ill. 522.

The reason of the decision in these cases is not the same as in a plea of fraud and circumvention. In such cases the party should be notified by the plea of the facts he is required to meet. So in a plea of fraud and covin. In what did they consist ? The plea does not inform the opposite party.

Hpon the other point, it appears from the record a transcript of the Hew Hampshire record was filed upon the trial of this cause. But whether or not, the motion to dismiss the cause for want of a copy was properly overruled, for under the statute the want of a copy could only work a continuance.

Being of opinion the amended third plea was bad and would be so adjudged on demurrer, and admitting it was error to go to trial with the demurrer to it unnoticed, the question is, would it comport with justice to reverse the judgment and send the cause back for such an error? We think not, and must affirm the judgment.

Judgment affirmed.