Norfolk & Western Railway Co. v. Coffey , 104 Va. 665 ( 1905 )

WniTTEL, J.,

delivered the opinon of the court.

The object of this action is to recover damages for personal injuries sustained by the defendant in error while at work as a laborer in the quarry of the plaintiff in error. A brief outline of the proceedings in the ease is essential to an intelligent apprehension of the questions presented for decision.

After issue joined upon the plea of not guilty, the defendant obtained leave of the court to file pleas of the statute of limitations within fifteen days from the date of the order; and liberty was also granted the plaintiff to reply generally or specially to said pleas. Accordingly, the defendant, within the time prescribed by the order and during the vacation of the court, filed with the clerk two pleas of the statute of limitations, but no issue was taken upon them by tbe plaintiff. At a subsequent term, a jury was empaneled to try tbe issue joined; and, at tbe conclusion of tbe testimony, tbe defendant demurred to tbe evidence, in wbicb demurrer tbe plaintiff joined. Whereupon tbe jury assessed tbe plaintiff’s damages at $2,000, subject to tbe opinion of tbe court on tbe demurrer to tbe evidence. During tbe progress of tbe trial tbe defendant introduced evidence tending to prove that more than twelve months bad elapsed between tbe date at wbicb tbe plaintiff attained, bis majority and tbe institution of tbe action; and upon tbe argument of tbe demurrer to tbe evidence it was insisted that tbe right of action was, therefore, barred by tbe statute of limitations. To repel that contention, counsel for tbe plaintiff presented an affidavit to tbe effect that be was ill at tbe time tbe defendant obtained permission to file tbe pleas in question, and knew nothing of tbe entry of tbe order or tbe filing of tbe pleas; that no record was made of tbe fact of such filing, either in tbe clerk’s office or at the succeeding term of tbe court; that no rule was asked or awarded against tbe plaintiff, requiring him to reply to tbe pleas; and that no issue was ever joined upon them; that tbe existence of tbe pleas and tbe fact that the statute of limitations was relied on by tbe defendant; were for tbe first time made known to counsel on tbe argument of tbe demurrer to tbe evidence and operated a complete surprise; that tbe plaintiff was full-banded with proof to meet that defense, but bad adduced no evidence on tbe subject, not conceiving tbe matter to be in issue upon tbe pleadings. Counsel also tendered replications to tbe pleas, and furthermore agreed that if tbe defendant would consent to file rejoinders to said replications, tbe verdict of tbe jury might be set aside, and tbe issue thus made submitted either in the court or jury for trial. But the defendant declined to accede to said proposal; and, thereupon, the court, disregarding the pleas, proceeded to overrule the demurrer to the evidence, and rendered judgment for the plaintiff.

It is alleged in support of that ruling, that the Oourt was without authority to permit the pleas to he filed in the first instance; and, in order to validate the proceeding, it was essential that the vacation filing should have heen ratified, or at least recognized, by an order at the succeeding term. •

It is true that after a case has heen matured for trial at rules, and docketed, while the court has ample power to allow additional pleadings to he filed during the term, there is no statutory sanction for permitting such pleadings to be filed in vacation, nevertheless, in conformity with a rule of practice which obtains throughout the State, such power is freely exercised by the trial courts in the practical administration of justice. Subject to proper limitation, the practice is not only unobjectionable, but tends to prevent surprise, and facilitates the preparation of cases for trial. Opposing counsel, however, ought always to be given notice of such application and opportunity to resist it; or else, if desired, to procure supplemental leave to file other pleadings and make up the issue. The court, at the next term, by analogy to the statutory control which it may exercise over all proceedings in the clerk’s office during the preceding vacation (Va. Code, 1904, §3293), exerts similar supervisory control over vacation proceedings done by leave of court, to correct irregularities and prevent abuses. Thus guarded, the practice is salutary and ought not to be disturbed.

Where a plaintiff fails to reply to a plea within the time prescribed by law, or order of the court, the correct practice is for the defendant to apply for a rule to compel him to do so, or in default thereof to suffer a judgment of non prosequitur. 18 Ency. of PI. & Pr., 650.

That judgment is appropriate where the plaintiff, after appearance and before final judgment, fails to prosecute his action by neglecting to file his pleadings in due course. 4 Min. Inst. (3rd Ed.) Pt. I, p. 957; St. Pl. 136.

If that practice had been pursued by the defendant in the present instance, no doubt issue would have been joined on the pleas of the statute of limitations, and the dilemma* which subsequently confronted the court would have been avoided.

It is, however, apparent that both court and counsel were taken by surprise at the reliance of the defendant on the statute of limitations; and it would have been manifestly improper, under the circumstances, to have sustained that defense. When attention, was called to the matter, the whole in’oceeding upon the demurrer to the evidence was in fieri, and under the control of the court; and it appearing that by mistake the pleadings were in such condition that the merits of the case, upon a material ground of defense, could not be decided, the court ought, of its own motion, to have set aside the demurrer to the evidence and the award of damages thereon, and, having caused the issue.to be made up on the pleas of the statute of limitations, ordered a new trial of the case. Taliaferro v. Gatewood, 6 Munf. 320; Fairfax v. Lewis, 11 Leigh 233; Ins. Co. v. Wilson, 29 W. Va., 528, 2 S. E. 888.

In an action at law, the statute of jeofails does not cure the non joinder or want of issue altogether, and no verdict or judgment can properly be rendered therein. The authorities on the subject will be found in a note to Rowans v. Givens, 10 Gratt. (Va. Rep. Anno.) 249.

Other grounds of error have been pressed, but inasmuch as for the reasons assigned, the judgment must be reversed and a new trial had, upon which the evidence may not be the same, it would not be proper to express any opinion in regard to them. Tlie judgment is reversed and the case remanded for further proceedings to he had therein not in conflict with this- opinion.