Bailey v. District of Columbia , 4 App. D.C. 356 ( 1894 )

Mr. Chief Justice Alvey

delivered the opinion of the Court:

It was contended on the part of the plaintiff that the foregoing affidavit was not sufficient to show a valid defense to the action, and therefore the plaintiff was entitled to have judgment rendered under the rule for the amount claimed in the declaration and the particulars of demand; the demand being for the amount of the award. The 73d Rule of court requires that the defendant “ shall file along with his plea, if in bar, an affidavit of defense denying the right of the plaintiff as to the whole or some specified part of his claim, and specifically stating also, in precise and distinct terms, the grounds of his defense, which must be such as would, if true, be sufficient to defeat the plaintiff’s claim in whole or in part.” The grounds of defense are clearly enough stated, but the question is, whether the facts stated are sufficiently specific to support the grounds of defense set forth in the pleas ?

As will be observed, the subject matter of the reference was the litigated claim involved in the pending action of the present plaintiff against the defendant. That action is still pending, though it is contended on the part of the plaintiff that the reference operated as a discontinuance of such action. In that, however, we do not agree. That action is in fact still pending, and it appears that the referee, as well as the parties to the action, understood that the award should be returned to and filed in that cause, for final judgment. And so understanding the reference, the referee returned and filed his award in that cause, and thereupon proceedings were taken by both the plaintiff and defendant, treating the reference and award as properly belonging to that case. Those proceedings, according to the averments of the defendant’s third plea and the affidavit, are still pending for final determination. And what is thus existing as matter of record in that case, the plea referring thereto, and making it a part of the matter pleaded, becomes quite unnecessary to be specially stated in the defendant’s affidavit. The record referred to will speak for itself.

By the Maryland statute of 1778, Ch. 21, Sec. 8, in force in this District, it is provided, “ That, if any cause instituted, or hereinafter to be instituted, in any of the courts of this State, shall, by rule of court, and by the consent and agreement of the parties thereto, be submitted and referred to the award and arbitrament of any person or persons, it shall and may be lawful to and for such courts to give judgment upon the award of the person or persons to whom such submission and reference shall be made, as of the court to which such award shall be returned, and to award execution thereou, in the same manner as they might do upon verdict, confession or non-suit, and that such judgment shall have the same effect, to every intent and purpose, as any judgment upon verdict or confession would have.” And by the subsequent Maryland Act of 1785, Ch. 80, Sec. 11, it is provided “ that all causes referred by consent of parties and rule of court, shall be continued until an award is returned, and if death of either of the parties happen before an award returned and judgment thereon, such cause shall not abate by the death,” and so forth.

It is argued on the part of the plaintiff, that the reference now in question was not made by or under rule of court, because no such rule or order was actually entered. But that can make no substantial difference, if it was really the intention and agreement of the parties, and contemplated by them in making the reference, that the award should be returned to the court and judgment entered thereon, in the then pending cause. The fact that the cause was kept upon the docket, and continued from term to term, would seem strongly to indicate that such was the understanding of the parties. The entry of the rule or order is matter of course upon the agreement of the parties; and, as said by Chief Justice Abbott, in the Matter of Taylor and others, 5 Barn. & Aid. 217, it is mere matter of form to apply for and obtain the rule. It is well settled, in the practice under the statute 9 and 10 W. 3, Ch. 15, on language apparently more imperative than that employed in the act of 1778, in requiring the rule to be obtained in the first instance, that both at law and in equity, a submission to reference may be made a rule of court as well after the award has been made as before. Pownall v. King, 6 Ves. 10 ; Fetherstone v. Cooper, 9 Ves. 67 ; Heming v. Swinnerton, 5 Hare, 350 ; S. C. 2 Phillips, 79. See also, Matter of Arbitration between Story, James, and Robinson, 7 Adol. & Ellis, 602. If it was really the intention of the parties, in making the reference, that the award should be returned and filed in the then pending cause, such agreement to refer the cause would operate as a stay of proceedings, although not expressed that it should so operate ; and that whether the rule of court be entered or not. To proceed to dispose of the case after such reference would be in bad faith, indeed, a fraud upon the agreement; and that being so, the court will stay the suit to await the coming in of the award. Russell Arb. & Award, 86. To discontinue the pending case, leaving the successful party to his action on the award, is simply to make the award the beginning of a new litigation instead of terminating the old. Both reason and policy would seem to oppose such practice.

Without, however, expressing any definite opinion as to the legal sufficiency of the pleas of the defendant in the present action, we are of opinion that the affidavit of the Commissioners of the District, filed with those pleas, is sufficient. We must construe the rule of court with reference to the nature of the action, and of the defenses pleaded. We must also have reference to the character of the parties, and their presumed means of personal knowledge of the facts involved in the defense. This is an action against a municipal corporation, whose administrative officers and agents are changeable. Those in charge of the affairs of the corporation at the time of the occurrence of the events and transactions involved, may have long since ceased to have any connection with the corporation; and those now in office may know little or nothing of the special facts of such transactions. Indeed, the Seventy-third Rule of the Supreme Court^* seems to contemplate and provide for such state of litigation. The second clause of the rule applies to this case by analogy. It provides that the strict provisions of the rule shall not apply to defendants who are representatives of a decedent’s estate, except when the affidavit filed with the declaration sets forth that the contract sued on was directly with such representative, or that a promise to pay was made by him. And by the third clause of the rule, when a corporation is defendant, the affidavit may be made by any officer, agent, or attorney of such corporation. The rule and affidavit required, should in no case, and especially not in a case like the present, be so rigidly and strictly construed as to embarrass the defendant in availing itself of what may be regarded as a valid defense to the action. Nor should the affidavit, in any case, be tested as by a demurrer to a plea. All that can in reason be required is, that such state of facts, in support of the defense pleaded, be set forth in the affidavit as will satisfy the court of the good faith of the defendant in making the defense, and that such defense is not of a frivolous or dilatory character. Further than this the court cannot go in restricting the defendant in the exercise of his right to contest the demand of the plaintiff. In this case, the third plea of the defendant refers to the proceedings in the prior action and makes those proceedings, though informally, a part of the plea; and the matters thus brought upon the present record show the pendency of that prior suit, and the proceedings therein, and that the exceptions to the award, and the plaintiff’s motion for judgment, are still pending undetermined; and the question raised by the defense in this action is, whether the award filed in that case properly belongs there, and forms a part of .the proceedings in that case, and operates as a bar to this action. The sufficiency of the defense thus made must be determined upon the pleadings, or the pleadings and proof, and not as a side or collateral question upon the affidavit.

We must therefore affirm the ruling of the court below, denying the motion of the plaintiff for judgment under the rule, and remand the cause that it may be proceeded with in due course.

Ruling affirmed, with cost to appellee, and cause remanded.

* Seventy-third Rule. — In any action arising ex contractu, if the plaintiff or his agent shall have filed, at the time of bringing his action, an affidavit setting out distinctly his canse of action, and the sum he claims tobe due, exclusiveof all set-offs andjustgrounds of defense, and shall have served the defendant with copies of his declaration and of said affidavit, he shall be entitled to a judgment for the amount so claimed, with interests and costs, unless the defendant shall file, along with his plea, if in bar, an affidavit of defense denying the right of the plaintiff as to the whole or some specified part of his claim, and specifically stating also, in precise and distinct terms, the grounds of his defense, which must be such as would, if true, be sufficient to defeat the plaintiff’s claim in whole or in part. And where the defendant shall have acknowledged in his affidavit of defense his liability for a part of the plaintiff’s claim as aforesaid the plaintiff, if he so elect, may have judgment entered in his favor for the amount so confessed to be due.

Sec. 2. The provisions of this rule shall not apply to defendants who are representatives of a decedent’s estate except when the affidavit filed with the declaration sets forth that the contract sued on was directly with such representative, or that a promise to pay was made by him.

Sec. 3. When the defendant is a corporation, the affidavit of defense may be made by an officer, agent, or attorney of such corporation.