Weldon v. Wood

9 R.I. 241

• Court: Supreme Court of Rhode Island
• Decided: March 6, 1869
• Status: Published

Opinion

Potter, J.

The writ in this case was served by attachment of defendant’s goods, the officer returning that “ the body of the defendant was not to be by him found within his precinct.” The defendant pleaded in abatement, that the writ was not' legally served, because “the said defendant was at large and not concealed, and could have been found by said officer within his precinct at the time of said attachment.”

The plaintiff replied, that “ the officer making service of said writ used his best endeavors to arrest tbe said defendant, and tbat the said defendant could not by said officer be found witbin bis precinct at tbe time of said attachment,” and concluded to tbe country. To this defendant demurred.

In tbe Court of Common Pleas the demurrer was overruled, and defendant then, by leave, amended bis plea so as to read tbat “ tbe said defendant was at large and not concealed, and could have been found by said officer, using bis best endeavors, witbin bis precinct.” Tbe case was afterwards tried on tbe general issue, and verdict and judgment rendered for tbe plaintiff, and defendant appealed to this court, and a verdict, by consent, has again been rendered on tbe plea in abatement for tbe plaintiffin these words: “Tbe jury find tbat tbe officer making service of said writ used bis best endeavors to arrest tbe defendant, and said defendant could not by said officer be found witbin bis précinct at tbe time of said attachment.” Tbe defendant now moves in arrest of judgment, and for judgment for defendant non obstante veredicto, and for a repleader.

Tbe plaintiff contends, 1st, tbat tbe defendant not having appealed from tbe decision on tbe demurrer in tbe Court of Common Pleas, cannot question it now ; and tbat he has waived it by amending bis plea. 2d, tbat tbe issue raised by tbe pleadings is material and covers the whole ground of tbe case.

Tbe statute only authorizes attachment of personal property (Chap. 181, § 4,) in cases where “tbe officer cannot find tbe body of tbe defendant witbin bis precinct,” i. e., bis county, and section 3 provides that tbe officer shall use his best endeavors to arrest tbe body of tbe defendant.”

When tbe defendant pleaded, tbe plaintiff bad two courses before him. He might, if be thought tbe plea an improper one, have demurred. But if be concluded to traverse, he should have traversed everything tbat was material in tbe plea. Tbe ‘assertion tbat tbe defendant was at large and not concealed, was certainly a material allegation. According to tbe settled rules of pleading, when the pleader does not traverse a material allegation, it is to be taken as admitted. Stephens on Pleading, (side page,) 217.

We think the statute intends-to make the validity of the attachment depend on the fact, whether the defendant is to be found within the county, i. e., that he is openly and at large in the county and not concealed, and of course could be found ; and not upon the fact of .the officer using his best exertions to find him. The former fact is generally capable of easy proof; the latter would always be disputable. And the provision that the officer shall use his best endeavors we consider directory only, and not affecting the validity of the attachment.

The langvage of direction to the officer is as old as the act of 1718, “ shall use his best diligence.” This is repeated in 1744, page 75. The Digest of 1767, page 12, “shall use their best endeavors and diligence,” &c., and the same substantially in the Digests of 1798, page 201; 1822, page 158 ; 1844 and 1857 ; and it has never, so far as we know, been considered as other than directory. And we believe that the defendant, in pleading that he was “ at large (using this phrase as equivalent to openly and opposed to concealed) and not concealed,” has followed substantially the old practice and mode of pleading under this act. The language may have been suggested by the preamble to -the old act for attaching real estate, which remained in the statute book from 1736 down to and including the Digest of 1798, but which preamble is omitted in our present Revised Statutes.

In a cause decided in Washington county, at the October term, 1832, and in which several members of the bar familiar with, our old forms of pleading were engaged, the defendant pleaded that he “ was within the state and there to be found at large.” Upon demurrer, the court (Chief Justice Eddy, Bray-ton and Durfee) held the officer’s return conclusive ; and, as was said, in consequence of this decision, the General Assembly, in January, 1838, passed the act which now makes section 17 chapter 181, of the present Revised Statutes, and this section confirms the opinion we have expressed.

The plaintiff contends, that the allegation “ at large and not concealed” is argumentative, and that he was not bound to answer it. It seems to us that the allegation is direct and material. If he was at large and not concealed, then, certainly, he could have been found; whereas, the allegation that he could have been found, does not negative the idea of a certain degree of concealment, requiring a laborious and protracted search. The issue made is ambiguous, and does not determine the material fact. Gould’s Pleading, Ch. 10, § 29 ; Stephens on Pleading, pp. 99, 180.

The jury have found that the officer “ used his best exertions, and that the defendant could not by said officer be found,” &c. Now the allegation in this form is composed of one part immaterial and one part (the latter) material, but which, taken together, might mislead, and the court and jury would bave a right to consider it as equivalent to “the officer, using his best exertions, could not find the defendant.” They find this, too, against the admissions of the plaintiff on record, that the defendant was at large in the county, and not concealed therein.

Does the verdict cure the difficulty we have suggested ? We think not. A verdict will cure an informal, but not an immaterial, issue. The issue being liable to ambiguity, the verdict is so also. The officer using his best endeavors and not finding him, does not necessarily imply that he was not at large in the county, or that he could not be found, which is the essential fact. If he was at large in the county, which assertion is not traversed, then certainly he could have been found.

The cases upon the subject of repleader are not very many in number, and seem to have depended much on the discretion of the court in the particular case. A very general principle can however be deduced. It is not allowed where it will not better the case. Sometimes the object has been obtained by allowing a party to withdraw a plea. In the present case, the defendant’s demurrer was overruled, when we think it should have been sustained. We consider, therefore, that judgment should be arrested and the parties ordered to replead. Costs are not allowed, because most commonly both parties are in fault.

The defendant, also, alternatively, moves for judgment non obstante veredicto. This can only be done where the state of the pleadings is such as to show that a jury trial could be of no possible use, and that the judgment must, in any event, be for one side only. The same inconsistency or ambiguity in the pleadings which leads us to award a repleader, would necessarily lead to a denial of this motion.

Repleader awarded.