Opinion
No. 21536
Decided June 5, 1929.
Pleadings — Admission by demurrer not regarded as evidence or equivalent thereof — Error to enter judgment and refuse leave to plead, when.
The admission arising from a demurrer is not to be regarded as evidence or considered as equivalent to evidence. It merely denies the legal sufficiency of the facts alleged, and hence such facts are admitted solely for the purpose of testing their sufficiency in law.
ERROR to the Court of Appeals of Richland county.
This action was filed in the court of common pleas of Richland county by the Farmers' Savings Trust Company against the Rice Construction Company, praying for judgment upon various notes and mortgages. The bank also asked that a receiver be appointed to take possession of the real and chattel property covered by its mortgages, which application was granted by the court. Among the chattels covered by the bank's chattel mortgage was a White truck, which was taken into possession by the receiver, appraised at $500, sold for $300, and the sale was reported to the court and duly confirmed. After the sale, one D. Herring filed an application to commence an action against the receiver, upon the ground that Herring was the mortgagee of the truck in question; that the receiver had taken possession of the truck without right or authority and had sold it for far less than its fair and reasonable market value, without the knowledge or consent of Herring. The application was granted, and a cross-petition was filed by Herring in the original action, setting up the foregoing allegations, alleging that the truck was fairly and reasonably worth not less than $1,200, and that there was due Herring on his note executed by the mortgagor $1,000 and interest. The cross-petition prayed judgment against the receiver for $1,200 with interest. The receiver filed a demurrer on the ground that the cross-petition did not state facts sufficient to constitute a cause of action. On March 5, 1928, the court made a memorandum entry, the last paragraph of which is as follows:
"The demurrer to the cross-petition is overruled, and as the facts and value as set forth in the cross-petition were admitted by the demurrer, judgment is rendered on the cross-petition in favor of D. Herring for the sum of $1,200.00, with interest thereon at 6 per cent. from September 24th, 1926, to the first day of this term of court, and for his costs made herein, and the Receiver is ordered to pay such amount in advance and as a claim superior to plaintiff's claims in their action.
"Exceptions may be noted on such findings, judgment and order."
The court later entered another finding, judgment, and order, which reads as follows:
"Aug. 7, 1928. This day, to-wit: December 23, 1927, this cause came on for hearing on the Demurrer to the Cross Petition of D. Herring which was filed herein, by leave of Court, praying judgment against the Receiver for $1,200.00, and was submitted to the Court on oral argument of counsel.
"Upon consideration whereof, on March 5, 1928, the Court duly advised in the premises, overrules said demurrer, to which ruling plaintiff and Joseph H. Seibert, Receiver, at the time excepted.
"And, not only from the admission of facts by the demurrer but by reason of agreement of opposing counsel that the only question involved in the case is whether the plaintiff is liable to defendant in the sum of $400.00 or $1,200.00 as the value of the truck taken and sold by the Receiver, the Court renders judgment on the cross petition in favor of D. Herring, and against said Receiver, for the sum of Twelve Hundred Dollars, with interest thereon at 6% from Sept. 24, 1926, to the first day of this term of Court and for his costs therein made, and orders that the Receiver pay such amount out of the funds in his hands before making any payments on plaintiff's claim as set forth in its petition.
"To which finding, judgment, order and decree the plaintiff and Joseph H. Seibert, Receiver, herein, at the time excepted.
"And thereafter, to-wit, on April _____, 1928, came plaintiff and Joseph H. Seibert as Receiver and each separately asked leave to file answer to the answer and cross petition of D. Herring denying all the material allegations therein contained, but the Court refused leave to file such answers, to which ruling of the Court plaintiff and Joseph H. Seibert, as Receiver, separately excepted."
Error being prosecuted to this judgment in the Court of Appeals of Richland county, the judgment of the court of common pleas was affirmed, and the case comes into this court upon allowance of motion to certify the record.
Mr. Wm. McE. Weldon, for plaintiff in error.
Mr. C.H. Henkel, for defendant in error.
The plaintiff in error sets up as his principal assignment of error the rendering of judgment in favor of Herring for the sum of $1,200, with interest thereon, claiming that the value of the truck was a question of fact upon which he should have been allowed to introduce evidence prior to the rendering of judgment.
With this conclusion we are in accord. The case was submitted upon demurrer, and the admissions of fact made by counsel for the receiver were made for the purpose of the legal argument upon demurrer. Hence the facts set forth in the cross-petition and demurrer were not admitted by the receiver in the sense that the admission constituted a substitute for evidence in the trial upon the merits.
"The admission arising from a demurrer is in no sense to be regarded as an acknowledgment, or used as evidence, or considered as equivalent to evidence. It merely denies the legal sufficiency of the facts alleged, and hence such facts are said to be admitted, and, impliedly, they are admitted, but solely for the purpose of testing their sufficiency in law. When the demurrer is overruled the implied admission has served its purpose." 21 Ruling Case Law, 509, 510, citing Sprague v. New York New England Rd. Co., 68 Conn. 345, 36 A. 791, 37 L.R.A., 638; Grover Irrigation Land Co. v. Lovella Ditch, Reservoir Irrigation Co., 21 Wyo. 204, 131 P. 43, L.R.A., 1916C, 1275, Ann. Cas., 1915D, 1207.
Moreover, while the entry of the court speaks verity, according to the entry counsel for plaintiff in error did not admit that the truck was worth $1,200. The entry states that counsel admits that "the only question involved in the case is whether the plaintiff is liable to the defendant in the sum of $400 or $1,200 as to the value of the truck taken." Therefore it appears that the plaintiff in error never admitted that the value of the truck was that claimed by the defendant in error, and hence this judgment as to an issue of fact was entered in the face of an entire lack of either admission or testimony as to the reasonable value of the truck. Also, in our judgment it was an abuse of discretion, under the circumstances set forth in the record, not to permit plaintiff in error to file his answer denying the material allegations of the cross-petition, and for these prejudicial errors the judgment of the court of common pleas should have been reversed.
Judgment reversed, and cause remanded.
MARSHALL, C.J., KINKADE, MATTHIAS and DAY, JJ., concur.
ROBINSON and JONES, JJ., concur in the syllabus, but dissent from the judgment.
While I concur in the syllabus, I do not concur in the judgment. This is not a judgment rendered upon the demurrer, but upon a statement of counsel made in open court and incorporated in a bill of exceptions signed by the trial court. The judgments of the lower courts should be affirmed.
ROBINSON, J., concurs in the dissenting opinion.