Virginia Fire & Marine Insurance v. Bohnke , 4 App. D.C. 371 ( 1894 )

Mr. Justice Morris

delivered the opinion of the Court:

The mere statement of the case is sufficient to show that there has been grave irregularity and palpable error in the proceedings taken in the court below. Unquestionably, in granting leave to the .plaintiff to file an amended declaration, that court did not have it called to its attention that a final judgment had already been entered in the cause. The plaintiff well knew that there was such a judgment; for he had deliberately elected to abide by it rather than amend his declaration. He had appealed from that judgment and his appeal was pending at the very time that, apparently after a sober second thought, he applied for the leave to amend which he had previously declined to take. And yet he made no motion whatever to have the judgment vacated, but, on the contrary, entirely ignored it, and proceeded in total disregard of it. This we must characterize as a very grave irregularity, to say the least of it.

It is well settled that, during the term at which a judgment has been rendered, the court which rendered it may set it aside for good cause shown (Basset v. United States, 9 Wall. 38 ; Memphis v. Brown, 94 U. S. 715 ; Bronson v. Schulten, 104 U. S. 410); and the judgment rendered for the defendant in this case might have been vacated, if satisfactory reason had been shown to the court for so doing. But until it is vacated it remains in full force and effect; and no proceedings can be had in the cause, except such as are proper to carry it into effect. A final judgment in a suit at common law is a determination of the whole eontroverys between the parties; and to assume that, notwithstanding such judgment, they may still go on. in the same suit, and file additional pleadings as though nothing had been determined, would be absurd.

It w7as, therefore, improper for the plaintiff to file an amended declaration in this cause, with or without the leave of the court, without having previously procured the judgment rendered against him to be vacated.

We do not understand that the appellee seeks to controvert this proposition. But he excuses himself for the failure on the ground that it was an oversight on his part; and he contends that, whatever may have been the irregularity in this regard, it is not open to inquiry upon this appeal. The argument is that the present appeal brings up only the amended declaration and the proceedings thereon, and that we may not look behind that to inquire whether there has been any previous error, or to inquire into the propriety of the allowance of the amendment.

The plaintiff’s excuse for his failure to move to vacate the judgment cannot, of course, be taken as the equivalent of a vacation of it. The judgment stands; and it must be regarded as in full force and effect. But it is argued that upon this appeal we cannot look into the record to ascertain whether there is, in fact, a judgment; that we are confined in our investigations to the amended declaration and the proceedings had thereon ; that the defendant, if he desired to have the advantage of that judgment, should have introduced it by way of plea; that he cannot have the benefit of it on demurrer; and that the demurrer should be confined to the grounds specifically stated in the demurrer itself, among which that of a previous judgment is not found.

This argument wo must regard as entirely erroneous. It is very true that when there has been an amended declaration in a cause and pleadings thereon, the preceding pleadings for most purposes pass out of the case. The issues to be determined are only those raised upon the amended declaration. Trial, verdict and judgment must be upon the amended declaration. The right of appeal is determined by the. amended declaration. But it is not reasonable to assume that for no purpose whatever can we recur to the original declaration or to the proceedings that have been had before the filing of the amendment. A new cause of action might be introduced by the addition of new counts, or by the statement for the first time of a good cause of action in the amendment. The statute of limitations might successfully be pleaded to the amendment when it could not have been interposed as a defense to the original declaration. It is always proper in such case to recur to the original declaration for the purpose of comparison, and to determine by the comparison whether a new cause of action has in fact been introduced in the amendment: and this question might well be raised upon demurrer. Indeed, it is most usual to raise it by demurrer to the plea or replication, as when there had been a plea of the statute of limitations to an amended declaration.

It is elementary law that a demurrer opens up the whole record; and while it cannot, of course, be used to charge upon a party a defect in pleading that has been cured by amendment, it may very properly be used to show any defect inherent in the amendment itself, when that defect becomes apparent by comparison of the amendment with the original pleading.

But it is contended in this case that a demurrer cannot be used as substitute for a plea of former judgment. This contention is, in general, correct. Every cause must stand by itself; and the proceedings in another cause cannot be allowed to affect a pending suit, unless they are properly imported into it by appropriate pleadings or by being offered in evidence. A court cannot on demurrer take notice of a judgment in another cause. Such judgment must be pleaded or proved. But -when the extraordinary and almost unprecedented case is presented of a party proceeding in a cause with amended pleadings after there has been a final judgment in that cause against him, unreversed and existing in full force, there is no necessity for such a plea. The incongruity and impropriety are apparent upon the record of the case; and while advantage might have been taken of the irregularity by objection to the motion to amend, or by motion to strike the amended declaration from the files, it is the right of the defendant to show the error of the plaintiff's proceeding by demurrer; for the error is apparent on the record, and the court is not required to go outside of the cause to ascertain the error.

Neither can the contention be sustained that the defendant is confined to the grounds of demurrer specifically set forth by him with his demurrer. This is contrary to all precedent. Under the rules of the common law, a general demurrer does not require any grounds to be stated with it. The rules of the court below require that some substantial ground should be stated; but it has never been understood that this requirement excluded the consideration of any other grounds that might exist.

It is very questionable whether the court belowT, after the rendition of its judgment in favor of the defendant, on the 1st of December, 1893, had any jurisdiction to proceed in the cause for any purpose whatever, except to vacate that judgment or to enforce it. But, whether there was absolute want of jurisdiction, or whether the course pursued was a mere irregularity, it was grave error; and the judgment which ensued thereon for the plaintiff was wholly unwarranted. There cannot be two judgments in the same cause for the same precise subject matter, one for the plaintiff and one for the defendant. Such judgments would necessarily be inconsistent.

There are peculiar and unexplained circumstances in this case calculated to superinduce a regret that no opportunity was afforded for their elucidation before a court and jury. But the parties have only themselves to blame if the decision of their controversy has been made to turn upon questions of a-technical character. Parties are not at liberty to disregard the solemn adjudication of a court of justice, and to proceed as though there had been no such adjudication.

For the reasons here stated, the judgment rendered by the court below in favor of the plaintiff on the 3d day of February, 1894, must be reversed, with costs: and the cause must be remanded to that court, with directions to strike the amended declaration from the files. For, inasmuch as the defendant has a judgment already rendered in its favor in the cause, it would not be proper to render another judgment for it on its demurrer to the amended declaration. All the proceedings subsequent to the rendition of the first judgment were irregular, except the taking of the appeal, and should be stricken from the files and disregarded: and accordingly the cause is remanded for that purpose. And it is so ordered.