Opinion
No. 35251.
February 1, 1943.
1. BILLS AND NOTES.
In payee's action to recover on check drawn by defendant and protested for want of sufficient funds, demurrer to special plea setting up defense of want of consideration was properly sustained.
2. PLEADING.
In payee's action to recover on check drawn by defendant and protested for want of sufficient funds, second special plea alleging fraud in procurement of check, which plea was filed without leave of court, was properly stricken on motion (Code 1930, sec. 548).
3. BILLS AND NOTES.
Where copy of check drawn by defendant and official protests were filed with and made a part of payee's declaration and execution of check was not denied by affidavit filed with plea of the general issue, in absence of demand for jury trial, payee was entitled to judgment for amount of check without introduction of evidence (Code 1930, sec. 1587).
4. APPEAL AND ERROR.
Where defendant stated that since special pleas had been overruled he desired to plead no further and did not object when plaintiff moved for judgment and court announced discharge of jury, defendant thereby "waived" further formality of procedure as respects earlier plea of the general issue and could not on appeal challenge entry of judgment without evidence while such plea was on file.
APPEAL from the circuit court of Winston county, HON. JOHN F. ALLEN, Judge.
Rodgers Prisock and Z.A. Brantley, all of Louisville, for appellant.
The court erred in sustaining appellee's demurrer to the plea of appellants charging failure of consideration and fraud in procuring the signature to the check or negotiable instrument.
Hutson v. Miller, 148 Miss. 783, 114 So. 820; Weems v. Vowell et al., 122 Miss. 342, 84 So. 249.
The court erred in sustaining appellee's motion to strike appellant's plea charging fraud in the procurement of the signature to the application for admission of John Edd Covington, and check or negotiable instrument.
Drane v. Board of Police, 42 Miss. 264; Lee v. Dozier, 40 Miss. 477.
The court erred in sustaining appellee's motion for judgment against appellant when a plea of general issue was on file and undisposed of.
Dalton et al. v. Rhodes Motor Co., 153 Miss. 51, 120 So. 821; Dean et al. v. McKinstry, 2 Smedes M. (8 Miss.) 213; Shirley v. Conway, 44 Miss. 434; Taylor v. McNairy, 42 Miss. 276; Kidd v. Harris, 30 Miss. 396; 34 C.J. 169, 170.
The court erred in rendering a judgment by default or nil dicit.
Nil dicit is generally the technical form of judgment to be rendered where defendant has entered a general appearance, but has failed to plead, or where having pleaded, his plea has been stricken out, or is withdrawn, or abandoned and no further defense is made. There is, however, both at common law and under the statute no material distinction between a judgment by nil dicit and a judgment by default in their effect. Even the withdrawal of the attorney's appearance after the filing of a plea does not withdraw the plea so as to justify a judgment by default. The appellee was given judgment on a motion without introducing any evidence whatever. The appellee was required to present evidence in support of its demand.
Hoy Hathorn, of Louisville, for appellee.
The appellant argues that the court erred in sustaining appellee's motion for judgment against appellant when a plea of general issue was on file and undisposed of.
Appellee would not undertake to argue that the above statement would not be controlling if the facts in the case supported the assignment. There are several reasons, all of which clearly appear from the record, why the statement does not apply to the facts in this case. The appellant, after having violated the plain wording of Section 548 by filing a second special plea in bar of the action after the sustaining of the demurrer to the first plea which, if not duplicitous, was certainly frivolous, as charged in appellee's motion to strike said plea. Certainly it cannot be contended that a motion to strike is not the correct procedure when either of the parties have been guilty of mispleading or for violating any of the other provisions of the statute with reference to pleading.
Upon the sustaining of appellee's motion to strike the second plea, even though there was a general issue then on file the appellant would have been required to make affidavit of his meritorious defense setting out what the defense was, and paying all cost up to date and complying with other provisions that the court, in its discretion, might have seen proper to impose.
Hunter v. Wilkerson, 44 Miss. 721; Hartford Fire Ins. Co. v. Green, 52 Miss. 332; Code of 1930, Sec. 534.
We think that under Section 548 of the Code the court could have granted judgment final, and certainly so in view of Section 534, and unquestionably so, when counsel for appellant stated into the record that he declined to plead further, and on second request if there was anything else, remained silent. We submit that there was nothing to be done other than grant judgment final on appellee's motion.
We respectfully submit that in view of the mispleading of appellant under Section 548 of the Code of 1930, it was not necessary for appellee to introduce any evidence whatsoever, and there was no alternative for the lower court other than to grant the judgment asked for by appellee because the appellant violated Section 548 by mispleading. This plea was struck out on motion but it also violated Section 534, or rather invoked the provisions of Section 534 so that the penalty thereof was inflicted upon appellant and judgment final was rendered in favor of appellee. There is no motion in the record from the appellant supported by affidavit of a meritorious defense and payment of the cost to set aside the judgment as required by Section 534, and we respectfully submit that appellant is now estopped to complain of the judgment on appeal in this court.
Appellee, the payee of a check, which was protested for want of sufficient funds, sued appellant, the drawer of the check. At the return term appellant filed a plea of the general issue and the case was continued. At the next term appellant filed a special plea setting up the defense of a want of consideration. A demurrer to this plea was sustained. The following day, and after the jury had been empaneled, appellant filed, without leave of the court, a second special plea alleging fraud in the procurement of the check. Appellee moved to strike this second special plea, on the grounds (1) that the plea came too late, (2) that it was frivolous; (3) that it presented no defense to the action; and (4) that it was not permissible at that time under section 548, Code 1930. This motion was sustained.
Immediately following the order of the court on that motion, the following occurred, quoting the record:
"By Judge Brantly (attorney for the defendant): Your Honor, I want to dictate a statement into the record.
"By the Court: Do you want to make it in the presence of the jury?
"By Judge Brantly: Yes, sir, let the jury hear it. Comes the defendant, and states to the Court by and through his counsel that since his two special pleas filed in said cause have been overruled, the defendant now states to the Court that he does not desire to plead further at this time in said cause.
"By the Court: All right; anything else?
"By Mr. Hathorn (attorney for plaintiff): Now comes plaintiff in this cause and moves the court to enter a judgment for plaintiff for the sum sued for, to wit $781.62.
"By the Court: Motion is sustained. Gentlemen, you are relieved from a further consideration of this case."
Appellant assigns as error the action of the court in regard to the two special pleas. We have considered these pleas and are of the opinion that the court committed no error in dealing with them as was done. Appellant further assigns the action of the court in awarding judgment without any evidence being heard when there was a plea of the general issue on file.
Appellee replies to the latter contention by the argument that the second special plea was not one allowed by law except by leave of the court, and that for this mispleading plaintiff became entitled to judgment in the absence of an affidavit of merits by the defendant, which affidavit was not made, — citing section 534, Code 1930; and appellee replies further that a second special plea, not good, having been filed by the defendant, he was not entitled to have or rely on any other or further plea, — citing section 548, Code 1930.
We do not find it necessary to deal with the two sections of the Code mentioned in the preceding paragraph. As already stated, the action was founded on a check drawn by appellant, payable to appellee, and a copy of this check and of the official protest were filed with, and as exhibits were made a part of, the declaration. No affidavit was made by defendant and filed with his plea denying the signature to, or execution of, the check as is provided by section 1587, Code 1930. Therefore, had the case come on for formal trial before the jury, all that plaintiff would have had to do to make out its case prima facie would have been to introduce the check and the official protest thereof. And had the plaintiff introduced copies instead of the original, this would have been good in the absence of objection. The copies were already a part of the record, as stated, and it was not necessary to formally introduce them when there was no demand for a jury trial; from which it follows that in such case judgment could be validly rendered upon the exhibition of the copies filed with the declaration. Compare Panola County Bank v. J.O. Nessen Lbr. Co., 117 Miss. 593, 596, 597, 78 So. 516.
The quoted colloquy between the attorney for the defendant and the presiding judge, when reasonably interpreted, meant that the defendant was standing on his two special pleas waiving any further formality of procedure as respects his plea of the general issue; and unless defendant's attorney so meant, it was his duty to object when plaintiff's attorney made his motion for judgment and when the court announced the discharge of the jury, which evidently was done under the impression that defendant was not insisting that there were any isues to be heard by the jury. It is, therefore, too late to raise this question about the plea of the general issue on this appeal. We have often affirmed the procedural principle that he who does not object when he should will not be heard later to object when he would.
Affirmed.