Ohio ex rel. Burritt v. Cowles , 5 Ohio St. 87 ( 1855 )

Thurman, C. J.

The common law practice requires issues of law to be disposed of before the trial of issues of fact, and this rule was incorporated into the practice act of 1831.

It is obvious that all the issues, whether of law or fact, should be decided before giving judgment for a plaintiff.

Both these rules were violated in this case. Not only were the issues of fact tried without first deciding the law issue, but the latter was never decided. Without taking the least notice of it, judgment was given for the plaintiff.

That this was erroneous, is not denied ; but it is claimed that it was error that did not prejudice the defendants below, and that, therefore, it furnishes no ground for a reversal of the judgment. It is said that the plea demurred to, was wholly insufficient ; that no valid judgment for the defendants could have been rendered upon it; and that, consequently, it is immaterial that it was not noticed.

Does the doctrine that error not prejudicial .to the party complaining, affords no ground for reversing a judgment, apply to a case like this — namely, to a case where an issue has not been passed upon ? We see no sufficient reason why it should not, and we think it is settled by the authorities that it should. Swank v. The State, 3 O. S. Rep. 429 ; Young v. The State, 6 O. R. 437; Ferrill v. Humphrey, 12 O. R. 112.

Was the plea insufficient in substance ? for mere insufficiency in form would hardly excuse its being unnoticed.

1. It is said that it tendered an immaterial issue, for no demand was necessary before suit brought.

To this, it is replied, that the action was brought under the administration statute of 1840, which expressly requires a previous demand; but that, if it was even governed by the act of 1834, 1 Curwen 140, a demand was necessary, by the terms of that act, and upon general principles.

That the act of 1840 has no application to the case, is settled by McGooney v. The State, 20 O. R. 93, construing the last section of that act. There would be no ambiguity in that section, if it were correctly printed. The last word in it, “ act,” should be read “ acts.”

But the act of 1834, (1 Cur. 140,) is applicable, and it gives the action only where payment is “ withheld.” It would seem clear, therefore, that, in general, a demand is necessary; otherwise it cannot be said that payment is withheld. For it is not the duty of the administrator to go to the distributees to make payment, but their duty to go to him to receive it.

A case can well be conceived where a demand would be excused, because the circumstances, without a demand, sufficiently show a withholding of payment; as when the administrator absconds, or secretes himself. And the case of his removing from the State is expressly provided for by statute.

But, in all these exceptional cases, if there has been no demand, the matter of excuse must be averred, and as there is no such matter of excuse set forth in the present declaration, we must hold that, for aught that appears, a demand was necessary to lay the foundation for the action.

2. It is said that the plea is insufficient, because it does not aver that no demand was made by Caroline and Sybil, (the children.)

We think this objection well founded. The plea undertakes to answer the whole declaration, and, unless it do so, it is bad in substance.

Now, the declaration avers that the portions of Caroline and Sybil became payable in their lifetime, respectively, and were not paid, though the administrator, in their lifetime, was often requested to make payment.

If payment was demanded by Caroline and Sybil, it was not necessary for their heiress, Mrs. Burritt, to repeat it. Hence, the plea, that merely avers that she and her husband never made a demand, does not show that Caroline and Sybil had not done so. All the facts averred in the plea may be true, and yet a perfect right of action exist for the portions of Caroline and Sybil.

But it is said by the defendants in error, that if a demand was necessary, it should have been averred specially in the declaration, which is not done; and hence, even if the plea is bad, the demurrer, reaching back to the first defect, is fatal to the declaration, .and, consequently, to the judgment.

That the demand should have been specially averred in the declaration, is undoubtedly true ; and it is also true that there is no such special averment in it. But there is the general averment of “ though often requested so to do ” — the “ licet sepius requisite ” — and the question is thus presented, whether this general averment is sufficient upon general demurrer. For, if it is, the demurrer does not reach it — as a general demurrer reaches back to defects of substance only, in the previous pleading, and not to mere defects of form.

A majority of the court think the declaration sufficient upon general demurrer.

Before the statute of jeofails, 4 Anne, c. 16, a contrary doctrine was held, and the old cases have sometimes been followed, without attention being paid to the effect of the statute.

But the modern cases and elementary books certainly hold that the general averment is sufficient upon general demurrer. Bowdell v. Parsons, 10 East 359; Baar v. Wilber, 2 Cowan 117 ; 2 Humph. 417 ; 1 Chitty’s Pl., 2d ed., 331; Tidd’s Practice, 9th ed., 439.

Judgment of district court reversed, and that of common pleas affirmed.

Ranney, J,, dissented.