Miller v. Ambrose ( 1910 )

Mr. Justice Robb

delivered the opinion of the Court:

There are several assignments of error directed to the action of the court in entertaining an oral motion for judgment. The record showing that this motion was “argued- by both sides,” and failing to show an objection and exception because of the alleged irregularity, the point must be considered waived here. Brown v. Savings Bank, 28 App. D. C. 351; Consaul v. Cummings, 30 App. D. C. 540; Cooper v. Sillers, 30 App. D. C. 567.

We come at once, therefore, to the consideration of the question whether the court was justified in striking off defendant’s demurrer. Under sec. 1533 pf the Code [31 Stat. at L. 1418, chap. 854], had the demurrer been overruled merely, the defendant would have had the right to plead over. The entry of judgment after a demurrer has been stricken off on the ground that it is frivolous is upon the theory that there really was no demurrer; hence, in such a situation, sec. 1533 does not apply.

At the time of the interposition of this demurrer, common-law rule 28 of the court below required that in the margin of every demurrer there should be stated “some substantial matter of law intended to be argued,” and that “a demurrer without such statement, or with a frivolous statement, may be set aside by a justice at chambers or by the court, and leave given to enter judgment as for want of plea,” etc. This rule is now rule 31 of the new rules of that court.

To be frivolous in law, according to the Century Dictionary, a plea must be “so clearly insufficient as to need no argument to show its weakness.” The rule as laid down in the authorities undoubtedly is that to constitute frivolousness, a pleading must be so clearly and palpably bad, assuming the truth of its allegations, as to require no argument to demonstrate its weakness. Dominion Nat. Bank v. Olympia Cotton Mills, 128 Fed. 181; Cook v. Warren, 88 N. Y. 37; 31 Cyc. Law & Proc. p. 610. The motion to strike out a pleading as frivolous will be granted only in cases “in which the propriety and necessity of so doing are clear and free from doubt.” First Nat. Bank v. Lang, 94 Minn. 261, 102 N. W. 700. The reason for this is apparent because the granting of such a motion may summarily end a case and close every avenue of defense. In Dominion Nat. Bank v. Olympia Cotton Mills, supra, the court, in overruling a motion to strike out an answer as frivolous, said: “Were this case for trial on its merits, this would be the conclusion, and the defense set up would be overruled. But it is a very different question at this time to set aside the defense as frivolous. A frivolous defense is one which at first glance can be seen to be merely pretensive, setting up some ground which cannot be sustained by argument. ’ * * * It requires an argument and careful examination to answer it. So it cannot be said to be frivolous. Boylston v. Crews, 2 S. C. 422.” Such is the test.

It is contended by appellee that this case is ruled by Wilkins v. McGuire, 2 App. D. C. 448, in which this court sustained a judgment of the trial court, entered after striking off a demurrer on a promissory note as frivolous; but in that case the record failed to show that leave had been asked or given to plead over, and the demurrer being untenable in law, the court was bound to enter judgment. The opinion states: “We have no doubt that if leave had been asked in this case to plead over, the court would have granted it. But the defendant preferred to rely upon his demurrer; and he must be bound by his election.”

In the case at bar, the record shows that after argument on’ the demurrer had resulted in the demurrer being stricken off, an oral motion for judgment was'made and' argued by both sides. The only reasonable inference to be drawn from this is that the original argument was in reference to the sufficiency in law of the demurrer, and that the argument following the motion for judgment was upon the question whether leave to plead over should be granted. In other words, whether the demurrer should be merely overruled or stricken off. It is apparent, therefore, that Wilkins v. McGuire is not conclusive of the question under consideration.

The defendant contends that plaintiff’s declaration is in trover, while the plaintiff contends that it is in general assumpsit, and each party has cited numerous authorities in support of his contention. We will not determine the question at this time. It is sufficient for the purposes of this opinion to point out that while assumpsit was, in its origin, an action ex delicto, it is now strictly an action ex contractu; that the gist of the action of trover is conversion; and that the fiction upon which the action is grounded, namely, the finding of personal property lost by the owner, has been discarded by most courts. Having these points in mind, we think it apparent that it is at least a debatable question whether plaintiff’s declaration is in general assumpsit, as contended by him, or in trover, as contended by the defendant.

While the common-law rule of the court below^* was designed to simplify the forms of pleading and do away with unnecessary verbiage, it was not intended, we think, to abolish the common-law forms of action. Murphy v. Preston, 5 Mackey, 514. These forms of action remaining, it follows that, in declaring upon them, it is incumbent upon the pleader to set out the essential averments of such causes of action. Stirling v. Garritee, 18 Md. 468; Citizens’ Bank v. Tiger Tail Mill & Land Co. 152 Mo. 145, 53 S. W. 902.

Upon further inspection of plaintiff’s declaration, it again becomes apparent, we think, that it is at least a debatable question, assuming said declaration to be in trover, whether there is a sufficient averment of ownership of the property alleged to have been converted. Authorities have been cited on this point, which, however, we do not deem it necessary to review. Without considering the other grounds of argument stated in the margin of the demurrer, we conclude that the defendant was entitled to leave to plead over, and that therefore the summary judgment against him was erroneous.

The judgment must be reversed, with costs, and the case remanded for further proceedings. Reversed.

* See. I of common-law rule 26 provides that “prolixity and unnecessary verbiage shall be avoided in all pleadings.” — Reportes.