Hale v. Lawrence

22 N.J.L. 72

• Court: Supreme Court of New Jersey
• Decided: April 15, 1849
• Status: Published

Opinions

The Chief Justice

delivered the opinion of the court.

The material question is, whether the defendant is entitled to plead anew, or is limited to an amendment of the plea originally filed. Upon the solution of this question may depend, at least to some extent, the regularity and validity of the order of this court. I shall consider the defendant’s claim to this indulgence, and the power of this court to grant it, independent of the rule itself, and of all the extraneous circumstances which, upon the argument, were relied upon as affecting the rights of the parties.

Upon general principles, wherever a demurrer is filed in good faith or for the purpose of settling a question of law involved in the controversy, justice requires that, upon the decision of that point of law, either party should be permitted to amend his pleadings, in such mode as to present for determination the substantial cause of action, or the real ground of defence. The object of pleading is not to defeat, but to advance the ends of justice; not to destroy, but to protect the substantial rights of parties. In accordance with this clear and obvious principle, courts of justice have manifested great and increasing liberality in allowing amendments after demurrer. By the ancient practice, indeed, no amendment was permitted after demurrer without consent, upon the principle, that where a party had staked his rights upon a point of law, he was bound to abide by his election. In delivering the opinion of the court in Bramah v. Roberts (1 Bing. N. 0. 481), Tindal, C. J., said, “ The law of Westminster Hall, I believe ever since it stood in the place in which it now stands, has been, that if a parly thinks proper to rest his defence or his case upon a point of law raised upon the record, he must either stand or fall upon the point so raised.” And when the strictness of the ancient rule began to relax, it was gradually and with reluctant steps. It was at first required that the amendment should be made only while the pleadings were in paper, before the argument of the demurrer, next before the opinion of the court had been pronounced, and at length, before the judgment had been rendered. In modern practice, however, it is well settled, in accordance with sound principle, that amendments may be made even after judgment upon demurrer, whenever the substantial ends of justice require it. Such is the law of this court. The subject was fully and ably investigated by Chief Justice Hornblower on more than one occasion, and settled by the unanimous judgment of the court.

Leave to amend, it is true, is not a matter of right, but rests in the sound discretion of the court. Where, however, the demurrer appears to have been filed in good faith, and there has been no verdict upon an issue of fact, leave to amend is granted very much as a matter of course, wherever it is material to the cause of action or to a substantial defence.

In the present case the defendant justified under authority of a statute, which in its terms, at least, was a clear authority for the commission of the alleged trespass. The plea was filed in good faith. It was held by this court a valid bar to the action. There has been no affectation of delay on the part of the defendant; on the contrary, very unusual concessions have been made on his part to expedite the cause. Under these circumstances had the demurrer been sustained, and the plea adjudged insufficient by this court, the court by its well settled and uniform course of practice would have permitted the defendant to plead anew, either by amending the plea demurred to, or by adding such new pleas as might be deemed material to the defence.

It is insisted, however, that the privilege of amendment in this cause has been limited and qualified by the acts of the attorney of the defendant.

1. By an agreement, made by the counsel, and signed by the attorneys of the respective parties, bearing date on the 10th of January, 1848, after the judgment of this court had been pronounced, and prior to the issuing of the writ of error, it was agreed, among other things, “ that the defendant should have leave to amend his plea, such leave not to embrace the right to pub in a new plea.” This clause, it is insisted by the plaintiff, is a stipulation on the part of the. defendant not to file a new plea, and limits him to a mere amendment of the plea upon file. But is this inference warranted by the terms of the agreement ? The clause purports to be, and in fact is, an assent by the attorney of the plaintiff, not a stipulation by the attorney of the defendant. It is in terms an assent, by the plaintiff’s attorney, that the defendant may amend his plea filed, accompanied by a qualification that the leave should not embrace the right to put in a new plea. But did his declining to give such consent take away the right of the defendant to ask leave to amend ? Did it limit the power of this court to grant it ? There is no stipulation, by the attorney of the defendant, that he would not ask for leave to file new pleas: and granting he had made such stipulation by which his client would be stripped of a substantial defence, to which he would otherwise have been clearly entitled, it might become a material question whether the court would enforce such agreement. But there is no necessity for entering upon this inquiry. The fair construction of the agreement, the natural import of its language is, that the plaintiff’s attorney consents that the plea be amended, but he does not consent that any new pleas be filed. If that advantage is sought, the order of the court must be obtained. The right of the defendant to amend by leave of the court, is in no wise affected by the agreement.

It is further objected, that the court will not grant the defendant leave to plead the general issue, because that plea has once been filed in the cause, and was voluntarily withdrawn by the defendant’s attorney, by virtue of a written agreement between the attorneys of the respective parties. There is nothing in the mere fact cf withdrawing a plea that should prevent the court from permitting it to be again pleaded, if the rights of the parties and the justice of the ease require it. If the plea be withdrawn by the attorney for justifiable ends, or from misapprehension of the facts, or a mistaken view of his client’s rights, the court would not permit the defendant to be thereby deprived of his defence. It becomes, then, material to inquire under what circumstances the plea was withdrawn. Thirty-three suits had been commenced against the defendant, involving claims for damages to a very large amount. In all of them the general issue had been pleaded, and also two special pleas in bar. In two of the causes replications had been filed to one of the special pleas, which led to an issue of fact. In ail the eases there were important issues of law, the decision of which in favor of the defendant would conclude the rights of the parties. Upon those questions it was the design of both parties to take the opinion of the Court of Errors and Appeals. That could not be done until the issues of fact were disposed of and final judgment rendered. This would have involved the parties in the delay and expense of the trial of issues of fact, which in the event might have been rendered entirely unavailing by the decision of the Court of Errors upon the questions of law. By the trial of the issues of fact, moreover, all right of amendment under the demurrers would have been cut off.

It became, therefore, important to both parties, preeminently so to the plaintiff, whose right of action was seriously jeoparded by delay, being entirely contingent upon the defendant’s life, to get rid of the issues of fact. Under these circumstances, it was agreed between the attorneys (by written direction of the counsel) of the respective parties that the general issue in all the cases, and the statute of limitations in two of them, (that is, all the pleas which involved issues of fact,) should he withdrawn ; that the pleas should be held to be amended in the manner specified, and that either party should be at liberty to enter a rule for that purpose as by consent of parties. The amendments were made accordingly, and all the causes left to stand upon the issues of law. Now that these pleas were withdrawn for a justifiable, if not a laudable purpose, there can be no dispute. It facilitated the progress of the suits; it saved expense; it avoided delay; it compromitted directly no right of the defendant, however prejudicial it might eventually prove to his interests. If the defendant’s attorney, of his own motion and without the consent of the plaintiff’s attorney, had asked leave to withdraw these pleas, the application would have been granted of course, as tending to facilitate the administration of justice. Nor would the withdrawal of the pleas under such circumstances have been deemed a waiver of any right of the defendant to renew these issues, if from the disposition of the issues of law such renewal became necessary to his defence.

But it is insisted that this plea was withdrawn by virtue of a written agreement between the counsel by whom the cause was conducted, and that that agreement possesses the force of a binding contract, which cannot now be violated or avoided; that it was done at the instance of the defendant’s counsel, and for his benefit; that by it the plaintiff gained an advantage, of which he cannot be divested, and that, in the emphatic language of the plaintiff’s c.ounsel, the defendant must now “ abide the curse of a granted prayer.” Admitting all the facts to be as stated (which, however, is denied by the affidavit of the defendant’s counsel), the conclusion attempted to be drawn from them is entirely unwarranted by any principle of law. Suppose the application to withdraw these pleas had been made by the defeudant’s attorney in open court, and with the assent and by the agreement of the plaintiff’s attorney, there expressed verbally or in writing, it surely would not be pretended that that transaction constituted a contract between the attorneys which could not be relieved against by the court, or that the arrangement partook of the nature of a binding contract between the parties ? Now that the arrangement was made between the attorneys in vacation, and reduced to writing, cannot alter the nature of the transaction. It is simply the withdrawal of pleas by the defendant’s attorney in vacation with the assent of the counsel of the plaintiff, an act which the court would have permitted in term, either with or without the consent of the plaintiff’s attorney. The right of the defendant to an order of this court for leave to plead the general issue, or any other plea essential to his defence, is in no wise affected, either by the agreements of counsel or by the withdrawal of the pleas from the files of the court.

It remains to inquire whether this application has been made at the proper time and to the proper tribunal.

These causes were decided by the Court of Errors, at October term, 1848. The motion for judgment was made near the close of the term, on the eve of the adjournment of the court. The remittitur in this case (together with the remittiturs in thirty-two other causes) was filed in this court on the first day of November. This court was still open for the despatch of unlitigated common business, though the regular business of the term had closed, and no litigated matter could regularly have been heard, except by consent. The court actually dispersed on the very day the remittiturs were filed. The remittiturs were made in the absence of the defendant’s attorney. Under such circumstances the defendant’s attorney cannot be held guilty of laches in failing to make his motion for amendment in this court at that term. According to the general practice of the court, the remittiturs would not have been returned till the ensuing term. Conceding the plaintiff’s right to expedite his causes to the utmost, the defendant’s attorney could not reasonably have anticipated such unusual despatch. The plaintiff’s attorney having, upon filing the remittiturs, ruled the defendant to amend his plea in thirty days, the pleas were actually filed within the time so limited. The defendant now stands before the court without prejudice from laches on his part, or from the action of the court taken at the instance of the adverse party.

But have the court the power, in the present position of the case, to order an amendment? The single issue between the parties was upon a general demurrer to the defendant’s plea in bar. This court overruled the demurrer, and gave judgment for the defendant; upon writ of error that judgment was reversed, and the record remitted. The power of this court now to permit an amendment depends upon the character of the judgment rendered in the court above.

Upon a demurrer to a plea in law, or to any other pleading in chief, the judgment .is final; final, I mean, not as contra-distinguished from a judgment interlocutory, but final, as it is conclusive of the question at issue. And in this sense the judgment is equally final, whether it be for the plaintiff or for the defendant, or for or against the demurrant. Its conclusive effect cannot be avoided, except by opening or avoiding the judgment. The principle is thus clearly stated by Judge Gould : “When the demurrer is joined on any of the pleadings in chief, as on the declaration, plea in bar, or other pleading which goes to the action, the judgment is final, i. e. if for the plaintiff, it is quod recuperat, if for the defendant, it is quod eat sine die. So that on demurrer to any of the pleadings which go to the, action, the judgment for either party is the same as it, would have been on an issue in fact' joined upon the same pleading, and found in favor of the same party. Gould’s PI. 477, § 42. See also Ferrers v. Arden, Cro. Eliz. 668 ; S. C. 6, Coke 7 ; Hitchin v. Campbell, 2 Blue. R. 831 ; Bac. Ab., Pleas & Pleadings, I. 13 ; 2 Arch. Pr. 36 ; Arch. Prec. 298 — 9.

And upon error brought from a judgment upon demurrer, regularly the judgment is in like manner final and conclusive. If error be brought by the plaintiff below, and the judgment be affirmed, it is simply a judgment of affirmance. If it be reversed, the court of error shall give such judgment as the court below ought to have given. The regular judgment -of the Court of Errors in such case would be, that the judgment below be reversed; that the plaintiff recover his debt or damages, and that the record be remitted, to be proceeded in according to law. If the action were debt, the judgment would be technically a final judgment, not interlocutory; and no remittitur would be necessary, except for the purpose of having execution. But the judgment of the Court of Errors upon a demurrer, in an action sounding in damages, though interlocutory merely, is equally as conclusive upon this court and upon the rights of the parties as if the action were debt, the judgment final, and no writ of inquiry needed.

It is true that courts may and do permit pleadings to be amended after judgment upon demurrer. But this end is attained either by not permitting the rule for judgment to be entered, or if entered by vacating it, or by treating the pleading and the judgments upon it as a nullity, and in theory at least, if not in fact, striking it from the record. The court may thus deal with its own judgment, but by what authority shall it thus deal with the judgment of another tribunal ? I am aware that in The Utica Ins. Co. v. Scott (6 Cowen 606), the Supreme Court of the stale of New York hold that an amendment might be made upon a remittitur after judgment in error upon a demurrer. With due submission to that learned tribunal, I am unable to assent to the conclusion of the court, or to the reasons upon which it is founded. The Court of Errors in that case had not only reversed the judgment below, but had rendered judgment for the plaintiff upon the demurrer (8 Cowen 727). It must be admitted, therefore, that the case is an authority directly in point in support of the broad position, that this court may amend, even after judgment on demurrer in the court above. But, so far as I am aware, the authority is a solitary one. “ It will be seen (say the court), by Consulting the authorities, that courts have of late not confined themselves to cases where proceedings may be said to be in paper, but they have been guided by the question, whether substantial justice requires the amendment, at whatever stage of the proceedings it may be moved.” The last proposition is certainly too broad. It admits, at least, of some qualifications, one of which, I apprehend, is the very case under consideration. It can only be predicated with truth of proceedings before the same court while they remain sub potestate legis. The authorities, at least so far as I have been able to consult them, do not show that an inferior tribunal has the power to vacate or avoid the judgment of a superior tribunal, in order to let in an amendment of pleadings.

Again it is said by the court, in the case referred to, that the plea is' to be regarded now as if it had been overruled upon the demurrer in this court. From that proposition I respectfully dissent. That, in truth, is the very point in question. Can this court treat a plea upon which judgment has been rendered in a higher court, precisely as if it had been overruled in this court? I am of opinion that it cannot, and for the simple reasou, that it cannot get rid of the judgment of another tribunal, pronounced upon the very plea which is sought to be amended. If the judgment of this court overruling the demurrer had been affirmed in error, there is no.pretence that this court could have permitted the plaintiff to withdraw his demurrer and plead anew. The court, then, could not have treated the demurrer as if it had been overruled in this court. And why not? Simply because the judgment of another tribunal has intervened, and the proceeding quoad hoo is not under.the power of this court.

But it may be asked, is the party to be placed in a worse position by having the judgment of this court in his favor, than he would have been had the judgment originally been against him, in which event he would clearly have been entitled to amend. Even if that were the necessary consequence, it would by no means follow that this court could grant relief. The defendant in error would then stand in no worse position than the plaintiff in error where the judgment below is affirmed. But I apprehend no such consequence follows. Upon a reversal of judgment upon demurrer, the Court of Errors may at their discretion, permit the pleadings to be amended, or they may remit the proceedings to be amended at the discretion of the court below. Of the power of the Court of Errors to permit such amendments after reversal upon error, there can be no doubt. The judgment below being reversed, there can be no objection in point of principle to the amendment, and there are authorities to support the practice. Hall v. Snowhill, 2 Green 21; Pease v. Morgan, 7 John. R. 468 ; Stokes v. Campbell, 5 Cowen 21.

These cases, it is true, were in the Supreme Court, on error to the Common Pleas, where there was uo remittitur, and the amendment, consequently, must of necessity have been made, if at all, in the court of error. They show clearly, however, the power of a court of error to order an amendment upon the reversal of the judgment below, and are in accordance with obvious principle.

In Bloodgood v. The Mohawk and Hudson River Railroad Company (18 Wendell 78), the plaintiif brought a writ of error to the judgment of the Supreme Court, overruling the plaintiff’s demurrer to a special plea in bar. The Court of Errors, having reversed the judgment of the Supreme Court, and adjudged the defendants’ plea not to be sufficient in law to bar the plaintiff’s action, further ordered that the defendants have leave to amend their plea within such time as the Supreme Court might direct. Had the Court of Errors proceeded to pronounce judgment for the plaintiff, the right of amendment by the court below, I apprehend, would have been gone. I am of opinion that where judgment is rendered upon demurrer to any pleading in chief, and that judgment is reversed upon writ of error, and a new judgment rendered in the court above, either for the plaintiff or for the defendant, or where the judgment below upon demurrer is affirmed in error, this court has no power either to permit an amendment to the pleadings or to permit the demurrer to be withdrawn and a new pleading filed. I have discussed this question more at length than its importance in this case may require, because I deem it important that the principle should be distinctly settled, that no court has the power to permit pleadings to bo amended while the judgment of another court, either superior or inferior, stands in force unreversed, upon those pleadings; and also because I wish to be distinctly understood as neither claiming nor admitting the right of this court, in any way or upon any pretence, to evade or to defeat the solemn judgment of a superior tribunal. I deem it of the utmost importance to the due ad ministration of justice, and to the harmonious action of legal tribunals, that each should confine itself within its allotted sphere ; that due subordination should be strictly regarded, and the judgment of the superior tribunal faithfully enforced.

Y/hat, then, was the judgment of the Court of Errors? By the remittitur, it appears that the entry of the judgment in the minutes is as follows: “It is ordered and adjudged, that the said plea of the said defendant, in manner and form aforesaid by him above pleaded, and the matters therein contained, are not sufficient in law to bar or preclude the said plaintiffs from having or maintaining their aforesaid action against him, the said defendant: and it is further ordered and adjudged, that the record and proceedings therein be remitted to the said Supreme Court, to the end that the said Supreme Court may proceed therein according to law.” The entry is certainly not in usual form, nor am I aware of any precedent or authority for such an entry. There is no reversal of the judgment below, no rendry of a new judgment in the court of errors; it is no fact, but a mere declaration of the opinion of the court upon the question of law involved in the demurrer. The judgment of the court cannot, however, be defeated by a mere clerical niisentry; and so far as it can be ascertained, it must be enforced. There must have been, of necessity, a judgment of reversal. The omission to enter must be a clerical error. The omission to enter judgment for the plaintiff may or may not have been a clerical error. The Court of Errors, as we have seen, may, after reversal, either have rendered judgment upon the demurrer in favor of the plaintiff, thereby barring all amendments, or they may have simply remitted the record to this court, designedly leaving the judgment open, to permit this court fo order an amendment or not, at their discretion. In the absence of auy information to be derived from the entry, I cannot pronounce the omission a clerical error; but am bound to conclude that no final judgment was pronounced, or designed to be pronounced, by the court above, but that the matter was left open for the further action of this court. This view of the case is supported by the fact, that it is in accordance with a very usual, if not general practice of the Court of Errors of this state. It is strongly corroborated, moreover, by the fact, that the counsel of the plaintiff in error, upon the return of the remittitur, ruled the attorney of the defendant to amend his plea, which would not have been done if the court above had rendered judgment for the plaintiff

Regarding the judgment of the Court of Errors in this light, it leaves this court at full liberty to grant the motion for leave to plead anew, without in anywise transcending its proper powers or contravening the opinion of the Court of Errors.

I am, therefore, of opinion that the defendant is entitled to leave to plead anew, and that the pleas already filed do stand as the pleas in this cause, without prejudice to any question that may be raised touching their validity. The motion is granted upon the payment by the defendant of the plaintiff’s costs upon the demurrer in this court, and also in the Court of Errors. I am further of opinion that the rule entered in the minutes of this court, at the term of October, 1848, for a writ of inquiry, was improvidently entered, and must, together with the writ of inquiry, and all proceedings thereon, he vacated atid set aside, with costs. Let rules he entered accordingly.