Johnson & Lewis v. Killian, 6 Ark. 172 (1845)

Oct. 1845 · Arkansas Supreme Court

6 Ark. 172

Johnson & Lewis vs. Killian.

Whore superfluous and unmeaning words are used in the commencement of a pleaj-whieh in no respect qualify it, and when, by disregarding such words, the plea' presents tlie general issue formally, and technically pleaded, it will be good on-demurrer.

Thus, where a plea commenced: “As to the residue of the damages, to wit.- the stm' of fo'ur hundred/ and twenty, dollars” — and;such words were not’rosponsivo to the' declaration, but were followed by a substantial plea presenting the general issue, ihey will be treated as surplusage.

So where a plea of set off commenced: “the said defendant says, as to the said $420, actio non” — when the words, as to the sum, were not responsive to the declaration, but by disregarding them the plea was substantially good and formal, they will be treated as surplusage.

A party cannot plead in abatement and in bar to the same matter.

Nor can he plead in abatement, except matters arising subsequent to the institution of the suit, after having pleaded in bar.

A plea in bar is a waiver of all matters in abatement.

Appeal from the circuit court of Pulaski county.

Tms was an action of assumpsit, by John C. Johnson and Eli Lewis, partners under the style of Johnson & Lewis, against Milo Killian, determined in the circuit court of Pulaski county, at the May term, 1844, before the Hon. J. J. CkbndeNin, one of the circuit judges.

The declaration was filed to the March term, 1842, and the sum-* mons served upon the defendant, 25th December, 1841.

There were three counts in the declaration. The first charging that the defendant was indebted to plaintiffs in the sum of $300, for meat, drink, washing, lodging, &c, — in the further sum of $200, for feeding and taking care of horses, — in the further sum of $200, for goods, wares, &c., — and in the further sum of $200, for monies, &c. The second count charged that defendant was indebted to plaintiffs' $300, for office rent; and the third count charged an indebtedness of $400, on an account stated; concluding, to the damage of plaintiffs $500.

The defendant filed four pleas: first, a plea of non-assumpsit, as follows :

“Hs to the residue of their damages, to wit: the sum of four hundred and iioenty dollars, and the said defendant comes and defends the wrong and injury, when, where, &c,, and for plea says, that he did not assume, and undertake, in manner and form as the plaintiffs in said declaration have alleged, and of this he puts himself on the country.”

The second was a plea of set off commencing as follows:

“And for a further plea in this behalf, the said defendant says, as to the said $420, actio non, because he says, that the said plaintiffs, before and at the time of the commencement of this suit, to wit, &c., were and still are indebted to the defendant, &c.” — then follows a statement of the character of the set off, and the plea concludes in the usual form.

The third was a general plea of payment.

The fourth was a plea in abatement, in which the defendant pleaded that he ought not to be compelled to answer to the writ and declaration, “except for the sum of four hundred and twenty dollars, part of the damages therein mentioned,” because he averred that he had been garnisheed for eighty dollars of the sum claimed of him by the plaintiffs, by a writ of garnishment sued out of the Pulaski circuit court, by one Tunstall, which was served upon him before the commencement of this suit, and was still pending in said court. The plea was not sworn to. The pleas were all filed at the same time, and the plea in abatement was evidently intended, by the pleader, as his first plea, though it is numbered as the fourth in the pleadings.

The plaintiffs moved to strike from the record the plea in abatement; demurred to the first and second pleas, on the grounds that they were uncertain, and not responsive to the declaration,- and replied to the third plea. The court overruled the motion and demurrer, and the plaintiffs declining to plead further, gave judgment for the defendant. The plaintiffs appealed to this court.

Fowler, for the appellants.

The fourth plea, or plea in abatement, ought to have been stricken out: 1st, Because the plea shows that the attachment or garnishment was served on Killian, after the service of the writ, at the suit of Johnson & Lewis : 2d, Because it was not sworn to: 3d, Because it goes only to a part of the writ and declaration : and 4th, Because it was filed after three pleas in bar had been interposed.

A plea in abatement, not verified by affidavit, is not to bo regarded. It is a nullity and should be stricken out. Rev. Slat. p. 57» 5 Hayw. Rep. 30, 32, Young vs. Stringer. 1 Ark. Rep. 369, Lyon vs. Evans.

A defendant cannot plead the general issue, or any other plea in bar, and then plead in abatement. 3 Hayw. Rep. 203,206, Tern'll vs. Rogers, el al. 2 Ark. Rep. 113, Clarke vs. Gibson. 332, Webb vs. Jones & Prescott. 1 Ch. PI. 426.'

The pleas demurred to are exceedingly defective in form and substance, and bad on that account; because they neither answer the declaration or any part of it, and their mention of the sum of $420 is utterly unintelligible. Even if the two pleas demurred to are intelligible, they are radically defective in not responding to the whole declaration, nor to either count thereof. The sum of $420 is not mentioned in either count, as the sum demanded, or any part thereof: nor is it the amount laid as damages, nor is such a sum mentioned any where in the declaration. The rule of law is, that if a plea profess to answer only a part of a count, and is in truth but an answer to part of a count, a demurrer thereto is proper and should be sustained. See 8 Wend, Rep. 615, Slocum & Hogan vs. Despard.

A defendant cannot plead in abatement after pleading in bar, or after a demurrer even; if 'he does, it should be stricken out, or taken from the files. 5 Ark. Rep. 179, Fort vs. Hundley. 249 Odie vs. Floyd & Erwin. 140 Sillivant vs. Thorn & Reardon.— All pleas in abatement must be verified by affidavit, unless the truth of the plea appears of record, (as it does not in this case.) See 5 Ark. Rep. 225, Heard & Co. vs. Lowry.

TrapnaMi & Cooke, contra.

The defendant may plead in abatement to part, and demur or plead in bar to the residue. 1 Chit. 492.

When the matter goes to defeat only a part of the plaintiffs cause of action, the plea in abatement should be confined to that part. 5 Term. Rep. 557. 2 B. & P. 420. 2 Saunders 210, b. c.

The plea in abatement is good. “A foreign attachment before the writ is sued out, is pleadable in abatement.” Brown vs. Smith, 1 Salk. 280. Embre & Collins vs. Hanna, 5 John. 102-3. Wheel er vs. Raymond, 8 Gowen 315. Andrews vs. Herrick, 4 Gomen 521. Nathan vs. Giles. 5 Taunt. 558. La Chevalier vs. Dormer, Douglass 170.

A proceeding by foreign attachment will abate or bar a suit here according as it is pending or carried to judgment, in the same manner as a suit commenced here for the same purpose. Note to Andrews vs. Herrick, 4 Cow. 521.

The remaining pleas are a sufficient defence for the residue of the demand, and pleaded in proper form.

Oldham, J.,

delivered the opinion of the court.

In this case the defendant pleaded three pleas in bar and one in abatement, the latter being only part of the plaintiffs’ declaration: the plaintiffs demurred to the first two pleas in bar, replied to the thii’d, and moved the court to strike out the plea in abatement ; the court overruled the demurrer and also the motion to strike out the plea in abatement.

The words contained in the commencement of the first plea in bar, “as to the'residue of the damages, to wit: the sum of four hundred and twenty dollars,” according to the rules of pleading, must be regarded as surplusage. They are surperfluous and unmeaning, and in no respect qualifiy the plea, and when disregarded the plea presents the general issue, formally and technically pleaded. The rule as to what will be regarded as surplusage, is clearly laid down in Ch. on Pl. 262. It is there said that “if the matter unnecessarily stated be wholly foreign and irrelevant to the cause, so that no allegation whatever on the subject was necessary, it will be rejected as sur-plusage, and it need not be proved, nor will it vitiate even on special'demurrer; it being a maxim that utile per inutile non viiia-tur.” As observed by Lord Mansfield, “the distinction is between that which may be rejected as surplusage, which might be struck out on motion, and what cannot.” It is also said by the same authority that to a declaration in debt demanding £60, and containing six counts per £10 each, the defendant pleaded that he did not owe the said sum of £10 above demanded, and the plaintiff signed judgment, qnd treated the plea as a nullity, the court set-aside the judgment upon the ground, the words “of £10” might be struck out as surplusage.” The words in this plea do not refer to any or either of the counts in the declaration, but only to a part of the damages laid by the plaintiffs, as the consequence resulting from the breach complained of, and do not therefore restrict the plea in its. application to a part of the indebtedness or promises laid in the declaration.

The words in the commencement of the second plea in bar “as to the said $420,” are still more indefinite, having no reference to the declaration or the damages laid in the conclusion of the breach, unless taken in connection with the similar words contained in the preceding plea, which cannot be done, as they are separate and •distinct pleas, interposing distinct matters of defence. They must, therefore, according to the rules already cited, be regarded as sur-plusage, and the plea being divested of this superfluity, is a plea of set off, technically pleaded to the whole declaration. Under this view of the question, we are of opinion, that the demurrer was properly overruled to the two pleas under consideration.

The only remaining question to be determined is, whether the court properly overruled the plaintiffs motion to strike out the defendant’s plea in abatement. The order of pleading the various subjects of defence, is too clearly laid down in all the books to^e misunderstood. A party cannot plead in abatement and in bar to the same matter: nor can he plead in abatement, except matters arising subsequent to the institution of the suit, after having pleaded in bar. A plea in bar is a waiver of all matter in abatement. Chit. Pl. 474. At the time of filing the plea in abatement, the defendant filed three pleas in bar to the whole declaration. The plea is also uncertain, and in no respect responsive to the declaration, and ought to have been regarded as frivolous, and further, it was not sworn to. For these reasons it should have been stricken from the files.

Inasmuch as the defendant was entitled to judgment on the de-. murrer, the j udgment of the circuit court must be affirmed.