JOHN HOWARD, Respondent, v. JOHN RICHARDS and ELIAS RICHARDS, Appellants
Howard v. Richards
Brosnan, J\, concurring.
JOHN HOWARD, Respondent, v. JOHN RICHARDS and ELIAS RICHARDS, Appellants.
JOHN HOWARD, Respondent, v. JOHN RICHARDS and ELIAS RICHARDS, Appellants.
A complaint setting out a note in fall, and alleging the execution and delivery to, and ownership thereof by plaintiff, and that there is “ due, owing, and payable” a certain sum, is a good complaint, although it does not in direct terms allege the nonpayment of the note.
The cost bill is no part of the j udgment roll, and where there is no statement or bill of exceptions, we cannot pass on its correctness. On a mere appeal from a judgment we cannot review any error which might occur in refusing to sustain a motion made, after the appeal was perfected, to strike out the cost bill.
The mistake in the calculation of the amount for which judgment should have been rendered, should have been corrected by motion in the lower Court.
Appellant having failed to make the application in that Court, we will make it here, but impose the costs on the appellant.
Per Beattt, J.:
The proper practice in entering judgments is for the Clerk to enter the same within twenty-four hours after verdict, or order of Court for judgment,'leaving a blank for costs. If the cost bill is filed within two days after verdict, or order for judgment, the Clerk must fill the blank; otherwise it will always remain blank.
When the blank is filled up it must be considered as of the date of the judgment, and the judgment itself may, by relation, be considered as of the date of the decree for judgment.
In this case the judgment must be considered as of the date of the eighteenth of December, when the order for judgment was made; and it should have been entered up on that or the following day. <
If no cost bill was filed within two days after date of order for judgment, none could afterwards be filed.
Where costs are improperly inserted in a judgment, it is the proper practice to move in the Court below to strike them out. But if that motion is denied, the appeal is from the judgment which is erroneous, and not from the order of the Court below refusing to correct the error.
Appeals from orders after judgment are allowed, not to correct erroneous judgments, but to correct some erroneous proceeding subsequent to and founded on a good judgment.
Section 284, of Practice Act, directs that certain papers shall be brought up on appeal; it does not in express terms prohibit other papers from being brought up.
The Constitution gives this Court the trial of cases on appeal, and the Legislature could not, if it would, deprive the Court of the power of examining such portions of the record as are necessary to determine all appeals.
The Legislature never intended to deprive this Court of the power to examine bills of exception and other parts of the record which are not mentioned in the two hundred and eighty-fourth section of the Practice Act.
We must look into the record to see if there is any foundation for a judgment appealed from. As the filing of a cost bill is the only thing that gives jurisdiction to enter up a judgment for costs, we must look to the record to see if any such bill has been filed, and if an examination of the cost bill filed shows error in the judgment for costs, that error must be corrected.
Appeal from the District Court of the Eighth Judicial District, Hon. D. Virgin presiding.
The facts of this case are fully stated in the Opinion given in the case.
W. B. Brumfield, for Appellants, filed the following points:
Pirst. The Court below erred in overruling the demurrer to the complaint.
1st. Copies of the notes sued on are embodied in the complaint to supply the place of a statement of facts, required by Section 39 of the Code. ' (Prindle r. Garuthers, 15 N. Y. Rep. 428; Graves v. Palmer, 15 Cal. 415.)
2d. The two causes of action are jumbled into one count, without the necessary facts to constitute one good cause of action, or count, as required by Secs. 39 and 53 of the Code. (Telegraph C. v. Patterson, 1st Nevada Reports, p. 150.)
Second. The Court rendered judgment “ according to the prayer of the complaint,” (instead of for the amount due on the notes, etc.) The complaint demands judgment for f>158 more than appeared to be due on the notes set out.
Third. The judgment is entered'by the Clerk some days after judgment rendered, and after the appeal. It includes a large cost bill which is not filed within the statutory time. The Statute not having been strictly complied with by the plaintiff and the Clerk, this part of the judgment as entered is without authority. (Code of Nevada, Secs. 453, 454; Kelly v. Van Austin, 17 Cal. 564; Chapin t. JBroder, 16 Cal. 418, 419; Ex parte Burrill, 24 Cal. 350 ; Burnham v. Hays, 3 Cal. 115, and cases cited.)
I. Atwater, for Respondent, made the following points:
The demurrer was properly overruled; the complaint.does state a cause of action. (Summers v. Parish, 10 Cal. 350 ; Graham v. Oamman, 13 How. Pr. 360; Chappell v. Bissell, 10 How. Pr. 274; Appleby v. Ellcins, 2 Sand. 673.)
Second. The two notes constitute but one cause of action. No defect in the form of a statement can be taken advantage of upon this demurrer. (Wilson v. Mayor, etc., 15 How. Pr. 500 ; Moore v. Smith, 10 How. Pr. 361; Gooding v. McAllester, 9 How. Pr. 127,138, 436 ; 17 Howard Pr. 56 and 239.)
The Court did not err in rendering judgment according to the prayer of the complaint, there being no answer denying the amount prayed for to be correct. (Beal v. Hayes, 5 Sand. 640.)
The matter of costs cannot be reviewed on this appeal. The cost bill was not filed too late, as there was a stay of proceedings.
Even if regularly filed it does not affect the judgment. There is no appeal from the ortjer refusing to strike out cost bill.
If there was any irregularity in filing cost bill it was in filing it before 'stay of proceedings expired. Of this appellants do not complain. (4 Cal. 286 ; 5 Cal. 410-417; 11 Cal. 361; Eaton v. Caldwell, 3 Min. 134; Myers Co. v. Irvine, 4 Min. 553; Stinson v. Huggins, 9 How. Pr. 86; Potter v. Smith, 9 How. 262.)
Opinion by
Lewis, C. J.,
Brosnan, J\, concurring.
The complaint in this action was in the following form:
" John Howard, the plaintiff, complains of the defendants, John Richards and Elias Richards, and for his cause of complaint alleges that heretofore, to wit: on the nineteenth day of February, A.p. 1864, the said defendants made, executed, and delivered to the plaintiff their promissory notes in writing, of which the following are copies:
" Nevada Territory, Douglas County, 1 February 19th, 1864. j
" $1000. On the first day of November next, for value received, we promise to pay John Howard,-or bearer, the sum of One Thousand Dollars in good lawful money of the United States of America.
" John Richards,
"Elias Richards.
" Douglas County, February 19th, 1864.
" $1000. On the first day of May, a.d. 1865, for value received, we promise to pay John Howard, or bearer, the sum of One Thousand Dollars in good and lawful money of the United States of America.
" John Richards,
"Elias Richards.
" That said notes are long past due, that the plaintiff is now the legal holder and owner thereof, and that there is due and owing and payable thereon from the defendant to this plaintiff the sum of two thousand and three hundred and thirty-three dollars, for which sum the plaintiff prays judgment against said defendants, together with" the costs of this action."
To this complaint the defendants interpose a general demurrer, which was overruled by the Court below, and upon the refusal of the defendant to answer, judgment was rendered in favor of plaintiff, in accordance with the prayer of his complaint, from which the defendants appeal.
It is argued here that the complaint is defective in not alleging the nonpayment of the notes, and that for that reason the demurrer should have been sustained.
In our judgment the complaint is sufficient, though it would have been a much better pleading had it contained a direct and positive allegation of nonpayment. By the rules of pleading which have grown up under the Code of Procedure or Practice Act, all of the mere formal parts of pleadings which the Common Law -required are dispensed with, and nothing is now required but a concise statement of the facts necessary to be proven to entitle the party, plaintiff or defendant, to the relief claimed. A complaint is sufficient if it contains a clear, positive, and direct statement of facts which, if proven, will entitle the plaintiff to the relief which he seeks.
This complaint certainly contains allegations of all the principal facts which it would be necessary to establish to authorize a recov ery — the execution and delivery of the notes, the maturity, the ownership of the plaintiff, and that at the time of bringing the action there -was " due, owing, and payable" thereon a certain sum of money. The establishment of these facts would have entitled the plaintiff to judgment for the amount due on the notes. But it is said the statement that there is a certain sum " due, owing, and payable" on them is not a sufficient allegation of nonpayment.
It is provided by Section 70 of the Practice Act, that "in the construction of a pleading, for the purpose of determining its effect, its allegations shall be literally construed, with a view to substantial justice between the parties ;" and Section 37 declares that " all forms of pleadings in civil actions, and the rules by which the sufficiency of the pleadings shall be determined, shall be those prescribed by this Act." When tested by the rule that pleadings mjast be liberally construed, with a view to substantial justice between the parties, we could scarcely say, in a case of this kind, where the notes are fully set out, and the complaint shows the execution, delivery, maturity, and ownership of them, that the statement that there is a certain sum " due, owing, and payable " thereon is not a sufficient allegation of nonpayment. Indeed, the law presumes the nonpayment from the fact that they remain in the possession of the plaintiff. It is somewhat like the presumption of law that bills and notes are founded -upon a sufficient consideration, and hence it is entirely unnecessary to allege a consideration in an action upon such instruments; and yet a complaint upon any other species of simple contracts must show the consideration upon which it is founded, or it will be radically defective.
In the case of Allen v. Patterson, 7 N. Y. 476, it was held that a complaint was sufficient which in substance stated that the defendant was indebted to the plaintiff in a certain sum of money for goods, wares and merchandise, sold and delivered to the defendant at his request, on the first day of May, 1849, at the city of Buffalo; that the items of account were twenty in number, and then concluding as follows: " And the plaintiffs say that there is now due them from the defendant the sum of three hundred and seventy-one dollars and one cent, for which sum the plaintiffs demand judgment." It has been said in some of the subsequent cases in New York that this complaint was not an authority as to the standard of definiteness and certainty required in pleadings, but it was not considered so defective as to warrant the Court in sustaining the general demurrer interposed to it. Nor does the case of Allen v. Patterson come within Section 162 of the New York code', which provides that in actions upon written instruments for the payment of money, it shall be sufficient to set out a copy of such instrument, and then state that there is a certain sum of money due thereon, because that was not an action brought on a written instrument.
Appellant claims that the case of the State Telegraph Company v. Patterson, 1 Nevada, sustains his view of the complaint in this case. In that case we merely held that the facts upon which the plaintiff was entitled to recover should be stated — that it was not sufficient merely to state conclusions of law. But where all the facts necessary to constitute a cause of action are alleged, as in this case, we did not hold that a statement of a conclusion of law would vitiate the pleading. We conclude that the complaint is sufficient, and that the demurrer was therefore properly overruled.
As to the question raised upon the cost bill, we are unable to perceive how it can be reviewed upon this appeal. There is no statement or bill of exceptions. The appeal is simply from the judgment, which shows no irregularity in the allowance of costs. The motions made by the appellant, long after the appeal was perfected, to strike out the cost biff cannot be reviewed upon an appeal from the judgment. The cost bill is no part of the judgment roll, and is not properly before us; we cannot therefore inquire into its regularity, nor into any proceedings which were taken after the appeal from the judgment was perfected..
Where there is no statement, and the appeal is simply from the judgment, nothing is brought to the Appellate Court but the judgment roll. (Practice Act, Section 280.) The mistake in the calculation of the amount for which judgment should be rendered, ought to have been called to the attention of the Court below, and a motion made there to correct it, if that could be done. Such a point cannot properly be raised in the Appellate Court for the first time. (Abel Guy v. Edward Franklin, 5 Cal. 417.) However, we deem it our duty to correct the error, but to impose the costs of this appeal upon the appellant.
The Court below will therefore reduce the judgment one hundred and fifty-eight dollars, which is the sum in excess of that for which properly judgment should have been rendered.