Ridgeley v. Walker

The opinion of the court was delivered hv

Garrison, J.

We do noi find it necessary to express any opinion upon the technical point« of pleading and procedure argued by the appellar-ts or even to decide whether all of the matters so argued are proper subjects of appeal. By the twonly-seventh section of the Practice act of 1912 (Pamph. L., p. 377), under which this appeal is taken, we are forbidden to reverse a judgment for error as to matter of pleading or procedure unless after examination of the whole case it shall appear that the error injuriously affected the substantial rights of the appellant. Obviously, if such substantial rights are not injuriously affected by alleged errors, such errors need not be critically examined Tn the present case, the alleged errors did not affect any substantial right of the appellants.

The plea of the statute of frauds was in bar of the action, and on this record the averments of such plea stand confessed and justify the eniiv of judgment final as to the issue tendered by the special counts of the amended declaration. There was no error in the refusal to strike out these pleas or in the striking out of the replication thereto.

Upon this appeal, on which the appellants must show substantial merits, we regard the common counts in the declaration, plus the bill of particulars annexed thereto (which was a copy of the same contract as that set forth in the special eounLs), as presenting the same issue as that tendered by such special counts, and they were so treated in the court below. Disregarding, as we are enjoined by the legislature to do, all technical matters of pleading and procedure, the substantial, question as to the common counts was whether the appellants’ case thereunder was the same as chat set forth in their special counts. - By their hill of particulars they declared such to be the fact, and by such hill of particulars they are bound by force of the one hundred and second section of the Practice act.

This being so, the entry of the judgment brought up by this appeal was not the result of any error that affected any substantial rights of the appellants, and hence should not he reversed.

The judgment brought up by the appeal of each of the appellants is affirmed.

For affirmance — -The Chancellor, Chief Justice, Garrison. Trenohard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Yredenburgh, Williams, JJ. 12.

For reversal — None.