Hoey v. Hoey , 36 Conn. 386 ( 1870 )

Carpenter, J.

The declaration consists of two counts. The first is special, on a promissory note for three hundred and fifty dollars. The second is a general count in assumpsit, alleging an indebtedness of five hundred dollars. The declaration concludes with demanding five hundred dollars damages. The bill of particulars, filed in obedience to an order of the court, sets forth an indebtedness of over eight hundred dollars. The defendant thereupon moved the court to erase the cause from the docket, on the ground that the matter in demand exceeded the jurisdiction of the court. The court permitted the plaintiff to amend his bill of particulars by crediting the excess over five hundred dollars, and entertained jurisdiction of the case. Upon the trial the amount found due the plaintiff was less than five hundred dollars, for which judgment was rendered, and the defendant brings the record before this court on a. motion in error.

The first two errors assigned may he considered together, being in effect but one, and that is, that the case was not within the jurisdiction of the court of common pleas. The statute limits the jurisdiction'of that court to cases wherein the matter in demand exceeds the jurisdiction of a justice of the peace, and does not exceed the sum of five hundred dollars.

We may lay out of the case the amendment of the bill of particulars as immaterial.

Each count, on its face, is confessedly within the jurisdiction of the court, and the court cannot be ousted of its jurisdiction by uniting the indebtedness stated in the two counts, although the aggregate amount exceeds five hundred dollars. Denison v. Denison, 16 Conn., 37. Nor does the bill of particulars have that effect. The nature and office of a bill of particulars are clearly and correctly defined in Vila v. Weston, 33 Conn., 42. Although in-a certain sense it is an amendment or amplification of the declaration, yet it does not necessarily follow that it controls the declaration in respect to jurisdictional facts. There may be a distinction between an action of general assumpsit and actions of book debt and upon specialties and promissory notes, in which the plaintiff in his declaration makes a profert of his books, or instrument declared on, and in which the defendant may demand oyer of the same, and set it out in his plea, and thus make it a part of the record. In such actions there may be reasons for determining the jurisdiction of the court upon the matter contained in the oyer which do not apply to the present action. But we have no occasion to discuss that question, as we are all satisfied, upon another ground, that the motion of the defendant ought not to have prevailed.

The bill of particulars, when carefully examined and considered, will be found to follow strictly the declaration, and to be in complete harmony with it. It does not appear that the defendant demanded it, or that the court ordered it, in respect to either count in the declaration. And the plaintiff in preparing it did not limit it, or any item in it, to either count, but left it for the court to apply each item to the count to which it was applicable. In doing so it was the duty of the court, if possible, to do it in such a manner as to retain rather than deprive itself of its jurisdiction. The first item is a note, the description of which corresponds with the note described in the first count, and the presumption is that it is the same. That item then is applicable to the first count. It makes no difference that it may also be applicable to the other count, as there is no presumption that the court so applied it. Besides, there was no occasion to enter it upon -the bill of particulars at all. The plaintiff probably did so out of abundant caution; but it was unnecessary, inasmuch as it was described in the declaration and admissible in evidence, if necessary, under either count, without farther specification. Vila v. Weston, supra. Inserting it in the bill of particulars can have no legal effect, unless it be to oust the court of its jurisdiction, and we are not disposed to give it that effect. The remaining items, amounting to less than five hundred dollars, are applicable to the second count. The bill of particulars may, therefore, in legal contemplation, be considered as containing the latter items only. Taking that view of it, and we are satisfied it is the correct one, it is manifest that the court did not err in retaining and exercising jurisdiction of the case.

A question is made concerning the item of forty cents in the bill of particulars, which, it appears, was proved and included in the judgment at the sum of $40. The defendant assigns as the error upon this point, that the court “ took the plaintiff’s bill of particulars, including the said sum”of forty dollars, as the matter in demand, and included the said sum of forty dollars in the judgment.” It is very difficult to get any clear idea from the bill of exceptions what the precise' action of the court was which the defendant claims to have been erroneous. It appears by it that the item in the bill of particulars of forty cents for cash lent was claimed by the plaintiff upon the trial to have been' intended to be forty dollars instead of forty cents, and that the plaintiff offered evidence to prove a charge of forty dollars for cash lent, but without moving to amend the bill; and “ that afterwards, upon, the argument, without the knowledge of the court or of the defendant, he amended the bill of particulars so as to make the item forty dollars instead of forty cents, and claimed the forty dollars as part of his claim and - matter in demand,” and that “ the court, without knowledge that any amendment had been made during the trial, treated the forty dollars as part of the matter in demand and included it in the judgment.” From this it would appear that the court had no knowledge that the amendment had been made at the time the judgment was rendered, and yet the error assigned is that the court “ took the plaintiff’s bill of particulars, including the item of forty dollars, as the matter in demand” —meaning of course the plaintiff’s amended bill of particulars, as it was only in that that the item of forty dollars appeared.

The case is not helped in respect to this point by the motion for a new trial. That motion states that “ the court admitted evidence offered by the plaintiff to prove all matters in demand and items contained in the plaintiff’s bill of particulars, and admitted evidence to prove the item of forty dollars, and rendered judgment, including in said judgment the said sum of forty dollars, against the objection and protest of the defendant to the jurisdiction and to the sum of forty dollars as aforesaid.” Here it appears that the bill of particulars before the court was the plaintiff’s original bill of particulars, and that the court admitted evidence to prove “ the item of forty dollars.” But there was no item of forty dollars in the plaintiff’s original bill of particulars, and there is nothing in the motion to show what is meant by “ the item of forty dollars.” It is true that by turning to the bill of exceptions we find what is meant by this item, but we are not bound to look there for the purpose of helping out the defendant’s motion. The motion of itself must show clearly what the error is which is claimed to have been committed by the court; and the court is not bound to help it out by any favorable construction or supposition.

We think therefore that whatever error the court may have committed on this point it is by no means manifest, either upon the bill of exceptions or the motion for a new trial, from an utter failure of both to set out the matter with any such clearness and definiteness as to inform the court what the error is.

We are the more willing to dispose of the question in this way because there manifestly can have been no real injustice done by the ruling of the court. The plaintiff, as the court found, was entitled to the $40, and though, when the error in his bill of particulars by which it was carried out at forty cents was discovered he ought to have asked to be allowed to amend the bill, which he would undoubtedly have been permitted to do, with such delay of the trial as might be necessary for the accommodation of the defendant if he was taken by surprise and not prepared to meet the charge as thus altered, yet it is very clear that injustice would have been done to the plaintiff by a judgment in his favor for the other items of his account with a disallowance of this one, since he would have been without remedy for that part of his claim thus rejected. The defendant seems to have put his objection wholly upon the ground that the item was but forty cents in the bill of particulars, and did not ask for delay or claim to be taken by surprise. He was perhaps technically right, but we can not believe that he suffered any real injustice by the allowance of the item’by the court.

If we could see from the whole record that any real injustice had been done the defendant we might in the exercise of our discretion help out the infirmity of his motion by the most favorable construction that could reasonably be put upon it; but the court is under no obligation to give a motion such a construction and will not do it where it would not manifestly tend to promote justice.

A new trial must be denied and the judgment affirmed.

In this opinion the other judges concurred.