Day v. Frye , 41 Me. 326 ( 1856 )

Rice, J.

By § 4, c. 114, laws of 1855, it was provided that, in “all civil cases hereafter entered in said (Supreme) Court, when the defendant appears and desires a trial, he shall, at least fourteen days before the commencement of the term next after the entry of the action, or service on him, file with the clerk of the Court a specification in brief of the nature and grounds of his defence, with a declaration signed by himself or his attorney that the declarant believes that there is a good defence to all or a part of the plaintiff’s claim, and that he intends, in good faith, to make such defence. And no action shall be placed upon the trial docket unless such specification' and declaration has been filed as aforesaid.”

“ The Court shall, from time to time, establish and record all such rules and regulations as may be necessary, respecting the modes of trial and the conduct of business, not being repugnant to law, whether in relation to suits at law or in equity.” R. S., c. 96, § 9.

In July, 1855, the full Court, among other rules and regulations, established the following with regard to specifications of defence.

“ Parties filing specifications of the nature and grounds of defence, with the clerk, under the Act of March 16, 1855, (c. 174, § 4,) shall in all cases be confined, on the trial of the action, to the grounds of defence therein set forth; and all matters set forth in the writ and declaration, which are not specifically denied, shall be regarded as admitted for the purposes of the trial.”

It is now contended that this rule is inoperative and void, because repugnant to the provisions of c. 115, § 18, of R. S., by which special pleading is abolished. Is this so ?

Section 18, c. 115, provides that the defendant may, in all cases, plead the general issue, which shall be joined by the plaintiff, and he may give in evidence any special matter in defence, when the issue is to be joined to the country; provided'he shall, at the same time, file in the cause a brief statement of such special matter.

The statute providing that brief statements may be filed with the general issue, must be regarded as requiring a specification of matters relied upon in defence, aside from such as would come under the general issue, to be certain to a common intent, as much so as if insisted on in a special plea; and no proof is admissible, except in support thereof, or of the defence under the general issue. Washburn v. Mosely, 22 Maine, 160.

A notice of special matter to be given in evidence under the general issue, must contain as distinct an allegation of the grounds of the defence as would be stated in a special plea, although it need not have the technicality of a special plea. Brickett v. Davis, 21 Pick. 404.

The rules applicable to special pleading can rarely be applied to brief statements and counter brief statements. One of the important purposes designed to be accomplished by allowing them to be used instead of pleas and replications, was to relieve the parties from that exactness of allegation and denial, by which parties were sometimes so entangled as to prevent a trial upon the merits. Trask v. Patterson, 29 Maine, 499.

To divest legal proceedings of all abstruse technicalities has been a favorite object of modern legislation. Hence the abolition of special pleading and the substitution of the proceeding by brief statement. It was to render simple, plain and certain, that which before, to the common mind, at least, was dark, complicated and uncertain.

Another object of modern legislation has been to facilitate the administration of justice, and to reduce as much as practicable the expense incident thereto.

Section 1, of c. 115, provides that no action shall be entered in the Supreme Judicial Court after the first day of the session thereof, without the special permission of the Court. The object in view, in requiring the action to be entered on the first day of the term, was to enable the defendant to file any motion or plea which he might desire for the abatement of the action, before large costs had accrued, and to this end such pleas and motions are required to be filed as early as the second day of the term. Then again, to the end that defendants may have an opportunity to be fully informed of the character of the proceedings' which may be instituted against them, and know how to file their specifications or other grounds of defence, a rule of Court provides, that “ writs are to be filed before entry of the action, and are to remain on file.”

The plaintiff thus having, by statute provision, and a rule of Court designed to make that provision effective, entered his action and placed his writ containing his claim and the grounds on which it rests, within reach of the defendant, the Legislature again interpose and say to the defendant, that after a reasonable time he shall disclose to the plaintiff the grounds of his defence, or in the language of the statute, he shall “file with the clerk of the Court a specification, in brief, of the nature and grounds of his defence.” The objects of these provisions are most manifest; they are simply, that each party may be fully apprised, at an early day, of the claims and answers of the other, and of what is really in controversy between them. These claims and answers are required to be set out substantially; in brief, simple, but distinct language, without technical formality.

Then comes in view another object of the Legislature; the prevention of unnecessary cost to the parties. Hence, the provision of the rule, “ and all matters set forth in the writ and declaration, which are not specifically denied shall be regarded as admitted for the purposes of the trial.” And why should they not be ? The rule does not deprive the defendant of the right to call upon the plaintiff to prove every allegation in his writ and declaration. It only requires the defendant to notify his opponent of the points in his claims which he intends to controvert, to the end that he may be prepared with testimony on the contested matters, and that he may not bring in witnesses and thereby increase costs to establish propositions which are not contested. In my judgment the rule is not only not repugnant to the statute provision but in strict harmony with it, and well adapted to give it force and effect.

Nor is the provision novel in principle. Motions and pleas in abatement, must be made in one of the first two days of' the term to which the writ was returnable, or the defects to which they might have been interposed, are deemed to be waived. So, too, notice must be given of the denial of signatures, or their genuineness are deemed to be admitted. And, in this very statute, provision is made that no action shall be placed on the trial docket, unless such specification and declaration has been filed, as aforesaid. But it shall be the duty of the Court, at an early and convenient time, to dispose of the actions not placed upon the trial docket, by nonsuit, default, or otherwise, according to the rights of the parties, and as the proper and prompt administration of justice may require; they deeming the whole cause of action to be admitted. That it was the design of the provision of the statute to which we have alluded to diminish the “ law’s delay,” we have no doubt, and such, we think, was its tendency. The object of the rule alluded to was to protect the rights of parties, under the operation of the provisions of the statute, and to give effect to the statute itself. The statute has been repealed, whether wisely or unwisely, we express no opinion. But its repeal cannot affect this case, not having occurred until after this action was tried. Defendant defaulted.

Tenney, C. J., and Cutting, Appleton, and May, J. J., concurred.