Hogan v. Ross Ex Rel. Patterson

54 U.S. 173, 14 L. Ed. 100, 13 How. 173, 1851 U.S. LEXIS 845

• Court: Supreme Court of the United States
• Decided: May 11, 1852
• Status: Published

Opinion

Mr. Justice DANIEL

delivered the opinion of the court.

This was an action of debt instituted by the defendant in error, who was plaintiff in the court below against the plaintiffs in error, as the obligors in an injunction-bond. To the original declaration three pleas were filed at the June term of the court, 1845 ; to the second and third of these pleas the-plaintiff demurred ; and at the December term, 1845, the defendants demurred to the plaintiff’s declaration. The demurrers to the two pleas above mentioned were sustained by the court, and afterwards, viz.: on the 10th December, 1846, the court decided in favor of the demurrer to the declaration; giving at the same time leave to amend. The plaintiff, under this leave, filed his amended declaration, presenting the case which was acted upon in the court below. The amended declaration consists of two counts; the first sets out the injunction-bond with the condition thereto annexed, and alleges a breach of that condition as the special ground of the action. The second count is for the penalty of the bond, as having been forfeited by failure of payment. The defendants filed five pleas to the amended' decimation; upon the first of these pleas an issue of fact was joined, and the four following'were by the court adjudged bad upon demurrer. At the December term of the court, 1847, the cause coming on for trial upon the issue joined «pon the first plea, after the testimony on the part of the plaintiff was closed, the defendants tendered a demurrer to the evidence offered by the plaintiff, but in this the plaintiff refused to join, and dismissed or, struck out the first count in his declaration ; whereupon the defendants moved the court for judgment on the demurrer to evidence, for want of a joinder thereon, but this motion the court yefused to grant, and afterward entered up the following judgment: “ It appéaring to the satisfaction of the court that the defendants have filed no plea to the second count in the plaintiff’s declaration, but have therein made default ; it is therefore considered by the court that the plaintiff recover of the defendants the sum of six thousand three hundred and fifty-four dollars and ten cents debt in the second count in the declaration mentioned, and the costs in this cause expended.

If in our examination of the decision of the Circuit Court, it were deemed necessary to pass upon the legal effect of the pleas tendered by the defendants below, and overruled by the court, we could have no hesitation in pronouncing each of those pleas bad upon demurrer. It is a settled rule in pleading, that wherever- a plea in its commencement professes t'o respond to the entire declaration or count, and is in substance and reality in answer to part only of such declaration or count, the plea is bad, and the defect may be availed of, upon demurrer. If a plea profess' in -the commencement to answer only part of the declaration or count, and is in truth and substance a response to such part alone, the plaintiff should not demur, because the residue of the count or declaration is unanswered, but should take judgment for that residue by nil dicit, as by demurring he would operate a discontinuance of the entire cause. The authorities upon these canons' of pleading will be found collected from the earliest decisions by Sergeant Williams in note 3 to the cáse of the Earl of Manchester v. Vale, 1 Saunders, 28. The same -rules are' expressly affirmed in Tippet v. May, 1 Bosanquet & Puller, 411; Everard v. Patterson, 6. Taunton, 625; Wilcox v. Newman, 1 Chitty’s Reports, 132, and Hallet v. Holmes, 18 Johnson, 28. In the case before us every plea tendered by the defendants embraces Avithin its cc mmencement the entire cause of action, averring that the plaimiff should not have, or maintain his action; yet each of them in its body and substance,, is limited to the condition of the injunc Jon-bond and to some stipulation in that condition to which each plea specifically refers. The pleas demurred to therefore, could not but be' properly overruled; and with respect to that upon which issue was joined, it being immaterial and inconclusive as to the entire 4ecÍara-tion, and defective in the same sense with the others, had the issue been found, against the plaintiff, he would still have been entitled to judgment non obstante veredicto. But upon this record there, remains no subject for .the application of the rules of pleading above adverted to. The first count in the declaration having b.een dismissed or striken out, every thing which was pertinent strictly to that count, or which constituted a defence to the case made thereby, falls with the count against which such defence was interposed. The case then remains solely on the second count in the declaration, and it cannot be pretended that to this count, consisting.purely of a money claim, connected with no condition, any pleas have been interposed upon this record to this count; therefore the case must be considered as one of plain default entirely unanswered by the defendant below, and as having been properly-so treated by the Circuit Court. The judgment of the Circuit Court is therefore affirmed.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the Northern District'of Mississippi, and was argued by counsel;, on consideration whereof, it is now here ordered- and adjudged by this court that the judgment of the said District Court in this cause be, and the same is hereby affirmed yrith costs and damages at the rate of six per centum per annum.