Ross v. Fowler ( 1868 )

Peyton, J.,

delivered the opinion of the court.

On the 21st day of October, 1865, William M. Fowler sued out a writ of attachment against the estate of George A. Eoss, on the ground that said Eoss was a non-resident of this State. The said writ was levied on certain real estate of the said Eoss, and was returnable to the March Term of the Circuit Court of Madison county, 1866.

Britton L. Prichard was summoned as garnishee, to appear at said term of the court, to answer on oath what he, as executor of the last will and testament of James S. Prichard, deceased, or in his individual capacity, was indebted to the defendant in the attachment, or what effects of the defendant he had in his hands, or what effects or debts of the defendant there were in the hands of any other person, to his knowledge or belief. And in obedience to the summons he appeared at the March Term of said court, and answered that he was not individually, or as executor of the will of James S. Prichard, deceased, indebted to the defendant in the attachment, nor had he individually or as such executor any effects of said defendant in his hands. This answer was controverted by the plaintiff in writing, who alleges that the same is untrue, and that at the time of the service of the writ the said garnishee was in point of fact indebted to the defendant in the attachment in a large sum of money, to wit, in the sum of thirty thousand dollars.

At the return term of the writ of attachment, the defendant appears and files the following plea: “ The defendant, George A. Eoss, in his own proper person, comes, and for traverse and plea to the attachment in this case says on oath that he was not a non-resident of the State of Mississippi on the 21st day of October, 1865, the date of said attachment and the affidavit therefor.” And then, under notice, he proceeds to give a history of the facts, causes, reasons, and motives that induced him to go to the State of Texas, and on which he relied in proof to support the plea; all which is verified by the oath of the defendant. This plea, it appears from the record, was demurred to by the plaintiff, and the demurrer sustained by the court, and leave given to the defendant to answer over; and the defendant then filed a special plea, setting forth very' nearly the. same facts stated in the notice appended to his first plea, together with others, and to this plea also a demurrer was sustained by the court; and'the record states that the defendant, declining to plead further, makes default, and thereupon the court rendered judgment against the said defendant, in favor of the plaintiff, for the sum of $7,704.29, to bo levied of the lands, rights, and credits attached in this case; and thereupon a jury came to try the issue joined between the plaintiff and the garnishee, and said jury found the said issue in favor of the plaintiff, that the said 33. L. Prichard was at the time of the service of the garnishment indebted to the said George A. Eoss in the. sum of $7,704.-29; and thereupon the court rendered judgment against the said 33. L. Prichard, in favor of plaintiff, for said sum of money. From these judgments the plaintiffs in error prosecute this writ of error.

It is much to be regretted that so little attention is given to the science of pleading, to the importance of which we have the attestation of the distinguished American jurist, Chancellor Kent, who says, “ I entertain a decided opinion, that the established principles of pleading,' which compose its science, are rational, concise, luminous, and admirably adapted to the investigation of truth, and ought consequently to be very carefully touched by the hand of innovation.” A strict observance of these principles would tend much to diminish litigation, and greatly facilitate the administration of justice.

The efforts of the legislature of this State, for some time past, to simplify the laws, and to dispense with the knowledge of special pleading, cannot but be regarded as unfortunate for the legal profession, and more especially so for the parties litigant. Abating legal subtleties and useless technicalities, which were in ancient time a reproach to the law, we regard a knowledge of the rules of pleading as essential to the correct administration of justice in a country where the common law system of jurisprudence prevails.

In the case at bar the only plea authorized by the statute was a mere traverse or simple denial of the truth of the alleged cause for which the attachment was sued out. This pica in a few words presents the issue to be tried in all such cases. The second plea filed in this cause, so far as appears from the substituted plea, was clearly bad, and as special pleading it wants those requisites which are necessary to constitute it a good plea, and the plaintiff’s demurrer was therefore properly sustained to it. This second plea appears, however, to have been the result of an error of the court in sustaining the plaintiff’s demurrer to the first plea. This plea, independent of the matter contained in the notice appended to it, though inartifieially drawn, is perhaps a sufficient traverse under the statute of the alleged cause for which the attachment was sued out. The oath applies as well to the plea as to the irrelevant matters set out under the notice; and although the mode of verifying the plea is not very satisfactory, yet, in view of the very loose practice that is known to prevail in the Circuit Courts in such cases, it may be regarded as substantially sufficient.

The alleged cause of the attachment was, that the defendant was a non-resident of this State; and the defendant, in his first plea in abatement, as appears by the record, denies that fact, and says that he was not a non-resident of this State at the date of the affidavit and the time of suing out the attachment, and upon this issue the cause should have proceeded to trial in the court below.

And inasmuch as a judgment cannot legally be rendered against the garnishee until a judgment is obtained against the defendant in the attachment, the judgments will be reversed, the demurrer to the first plea overruled, and the cause remanded.