FROM ROCKINGHAM CIRCUIT COURT. "Civil actions in the supreme court in which an issue has been joined and judgment rendered, except in cases otherwise provided, and such actions in which judgment has been rendered by agreement of parties open to review, may be once reviewed." Gen. Stats., ch. 215, sec. 1. This action answers all the requirements of the statute, unless it must be said that issue was not joined.
The defendant pleaded the general issue, which of course must have concluded to the country, and thus referred the trial to the jury. He did everything incumbent on him to do that the issue might be joined and made ready for trial. Before going to the jury, the plaintiffs would have been required to add "and the plaintiffs do the like." "This addition," says Gould, "which from its concluding word is called the similiter, merely expresses the concurrence of the party to whom the issue is tendered, with his adversary, in referring the trial to the jury. It is, however, in strictness, no part of the pleadings, since it neither affirms nor denies any fact in maintenance of the action or the defence. The similiter would therefore seem, on principle, to be only matter of form; and as such the omission of it would seem to be aided by verdict." Gould's Pl., ch. 6, secs. 20, 21. It was so held in Whiting v. Cochran, 9 Mass. 532.
By "issue joined," as used in the statute, is meant an issue of fact reached by the parties, as distinguished from cases where the defendant does not plead or appear, and thus no issue is raised.
Many cases are actually tried by the jury, without the similiter being added, and not unfrequently without the plea of general issue. But it *Page 165 is always understood, when no plea is filed, that the cause is tried on the general issue, and the defendant would no doubt be defaulted upon application to the court if he should refuse to file it. So, also, if the addition of the similiter could be regarded as anything more than mere form, the plaintiff, upon his refusal to add the same, would be nonsuited.
Anciently, when the jury trial was not a matter of right, but was called jurata e consensu because it was never had except by the consent of both parties, or perhaps by the recommendation of the court, the party who closed the pleadings with a traverse, if he saw fit so to do, offered a trial by jury, i. e., he put himself on the country; and the other party, if of the same mind, accepted that mode of trial by adding the similiter, whereby the issue to the jury was joined. But trial by jury being now matter of right, the similiter has become, whenever the issue is rightly joined, matter of form, so that when the party whose duty it is to add it goes to trial without so doing, he practically accepts the issue, and should not afterwards make the objection on a writ of review.
It seems to me, when all the material allegations of the declaration are directly denied by the plea of general issue, issue is joined. One party says "It is so," and the other says "It is not so." One has affirmed, the other denied, and they are at issue. When they come to that pass, the constitution puts them on the country, — that is, neither can nominate any other tribunal without the assent of the other. In this case I think issue was joined, within the fair meaning of the statute.
The case of Perry v. Goodwin, 6 Mass. 498, has not escaped my attention, where it was held that no review could be had, by the statute, of a judgment on default; nor the case of Smith v. Gilman, 3 N.H. 501, where it was held that a writ of review could not be sustained, except in cases where there was all issue in fact to be tried by a jury, joined between the parties. The Massachusetts statute of 1786, c. 66, under which Perry v. Goodwin was decided in 1810, differed very materially from our present statute. It provided that either party, aggrieved at the judgment of the supreme judicial court where only one verdict had been given against him, might review the cause, "and have one trial more, which shall be upon the issue appearing on the record." That case is not therefore all authority upon this question.
Smith v. Gilman, decided in 1826, was under the statute originally passed in 1791, and which remained substantially unchanged till the revision of the statutes in 1841 — see Laws, 1805, p. 90; Laws 1815, p. 102, sec. 12 — which provided that actions tried in the common pleas, originating before a justice of the peace, and actions tried in the superior court, originating in the common pleas, might be reviewed in the court where final judgment was rendered; and such actions were required to be tried "upon the pleas made upon the former trial, upon record." Under such a statute the court could not do otherwise than hold that, with respect to Gilman who was defaulted, the *Page 166 writ of review could not be sustained, for there was no issue joined between him and the plaintiff to try.
The statute of 1829 (Laws, 1830, p. 89, sec. 6) contained the same provisions, limiting a review to actions that had been tried. But in the Revised Statutes of 1842 a radical change appears to have been made. Chapter 192, sec. 1, provided that "all civil actions in which judgment has been rendered in the court of common pleas, or superior court, in which any issue of fact has been joined * * may be once reviewed." And in Gen. Stats., ch. 215, sec. 1, it is provided that "all civil actions in the supreme court in which an issue has been joined and judgment rendered * * may be once reviewed." The difference between the present statute and that of 1791 is sufficient, in my judgment, to warrant the conclusion we have reached. The legislature could hardly have intended, when they said, in 1867, "in which an issue has been joined and judgment rendered," the same as their predecessors meant when they said, in 1791, that "actions tried in the common pleas" and "actions tried in the superior court" might be reviewed. They could hardly have meant to be understood as though they had said "actions may be reviewed in which an issue has been tried and determined by the verdict of a jury, or otherwise."
The court say, in Smith v. Gilman, that a review cannot be had except in cases "where there was an issue in fact to be tried by a jury joined between the parties," — and our statutes since 1842 have stopped at the same place; and this court has nowhere held that a review cannot be had under such circumstances. If it be a proper thing for the legislature to do, — to give a party who has had one trial of his cause, a opportunity to try it a second time, — it would certainly seem that a party who had, after issue joined, had judgment rendered against him without a trial, should have the opportunity to try his case upon the merits; and this consideration undoubtedly influenced the legislature in introducing the change into the Revised Statutes. I think we shall be following out the legislative intent if we hold that our present statute is intended to preserve the right of review when an issue of fact has been joined, even though followed by a default.
No question is raised that the notice for the review was not seasonably filed.
I am of opinion that the defendant is entitled to a review.
LADD, J., concurred.