Fidelity Mutual Life Insurance v. Brown

D.C. Circuit

Fidelity Mutual Life Insurance v. Brown

45 App. D.C. 579, 1917 U.S. App. LEXIS 2486

CourtCourt of Appeals for the D.C. Circuit

DecidedJanuary 2, 1917

DocketNo. 2975

StatusPublished

This text of 45 App. D.C. 579 (Fidelity Mutual Life Insurance v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Fidelity Mutual Life Insurance v. Brown, 45 App. D.C. 579, 1917 U.S. App. LEXIS 2486 (D.C. Cir. 1917).

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Opinion

Mr. Justice Robb

delivered the opinion of the Court:

Section ‘1567 of the Code [31 Stat. at L. 1423, chap. 854] reads as follows:

“Sec. 1567. Set-off As to Part. — If the defendant’s plea of set-off covers or applies to only part of the plaintiff’s demand judgment may be forthwith rendered for the part not controverted and the costs accrued until the filing of the plea, and the case shall be proceeded with for the residue as if the part for which judgment was rendered had not been included therein.”

It at once becomes apparent that had the plaintiff, in the body of his motion of January 17, 1916, alluded to the defendant’s plea proper instead of to the supporting affidavit of defense, no question could possibly be raised as to his right to take a judgment for the amount admitted to be due, without prejudice as to the balance. The defendant relies upon Overland Washington Motor Co. v. Alexander, 43 App. D. C. 282. In that case the sole plea of the defendant was an affidavit of defense, and no question was raised as to the applicability of section 1567. The difference between the two cases, ’therefore, is quite apparent. In Boogher v. Byers, 10 App. D. C. 419, this court sustained a judgment under the 73d rule “for want of proper affidavit to the pleas, as required by the rule.” It was held that to prevent judgment all pleas must be supported by affidavit. It is.apparent, therefore, that under the ruling in [583]*583that case the affidavit of defense is a part of the pleas, and where, as here, the same amount is admitted to be due in the pleas proper, it is quite immaterial whether the plaintiff refers to the one or the other in his motion for judgment for the amount admitted to bo due. Since, under section 1567 of the Code, the plaintiff was entitled to a judgment for the amount admitted to be due, we fail to perceive wherein the defendant was prejudiced in any way by what was done.

Some question is attempted to be made concerning the taxation of costs and the allowance of attorney’s fee, but, as the record fails to show that these questions were raised in the trial court, they will not be noticed here.

The decision is affirmed, with costs.

Affirmed.

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Mr. Justice Robb

delivered the opinion of the Court:

Section ‘1567 of the Code [31 Stat. at L. 1423, chap. 854] reads as follows:

“Sec. 1567. Set-off As to Part. — If the defendant’s plea of set-off covers or applies to only part of the plaintiff’s demand judgment may be forthwith rendered for the part not controverted and the costs accrued until the filing of the plea, and the case shall be proceeded with for the residue as if the part for which judgment was rendered had not been included therein.”

It at once becomes apparent that had the plaintiff, in the body of his motion of January 17, 1916, alluded to the defendant’s plea proper instead of to the supporting affidavit of defense, no question could possibly be raised as to his right to take a judgment for the amount admitted to be due, without prejudice as to the balance. The defendant relies upon Overland Washington Motor Co. v. Alexander, 43 App. D. C. 282. In that case the sole plea of the defendant was an affidavit of defense, and no question was raised as to the applicability of section 1567. The difference between the two cases, ’therefore, is quite apparent. In Boogher v. Byers, 10 App. D. C. 419, this court sustained a judgment under the 73d rule “for want of proper affidavit to the pleas, as required by the rule.” It was held that to prevent judgment all pleas must be supported by affidavit. It is.apparent, therefore, that under the ruling in [583]*583that case the affidavit of defense is a part of the pleas, and where, as here, the same amount is admitted to be due in the pleas proper, it is quite immaterial whether the plaintiff refers to the one or the other in his motion for judgment for the amount admitted to bo due. Since, under section 1567 of the Code, the plaintiff was entitled to a judgment for the amount admitted to be due, we fail to perceive wherein the defendant was prejudiced in any way by what was done.

Some question is attempted to be made concerning the taxation of costs and the allowance of attorney’s fee, but, as the record fails to show that these questions were raised in the trial court, they will not be noticed here.

The decision is affirmed, with costs.

Affirmed.

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45 App. D.C. 579, 1917 U.S. App. LEXIS 2486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fidelity-mutual-life-insurance-v-brown-cadc-1917.