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- 309 RETROSPECTIVE MOTIONS
RETROSPECTIVE MOTIONS 573 Ch. 27 [n conses are now r Defects r Defects, bstantive, et of the e Statute :ally enuany Stat)efects in reated as ~arded as ‘Verdict. 4otion in ned. IS as are ‘, it was Any Dety Plead-1, which illon Dc-such as of of the ftated or o be preirect the ye given tion, or he Corn2quently Pleading, 60 (1585).
8 note 1, 136 Eng. 364. 137 ‘orster V. ass.) 541 574
tiff is entitled to the Judgment of the Court, although a Verdict has been found against him. In the other case, that he is not entitled to the Judgment of the Court, although a Verdict has been delivered in his favor. Like the Motion for Judgment Non Obstante Vercd-icio, that in Arrest of Judgment must always be grounded upon something Apparent on the Face of the Pleadings; for instance, if, in an Action against the indorser of a Bill of Exchange, the plaintiff were to omit to allege in his Declaration that the defendant had notice of dishonor, Judgment would be Arrested even after a Verdict in the plaintiff’s favor. “The power to make these respective Motions, coupled with the inability to Demur and Plead at the Same Time, led to a practice of passing over Objections to the Pleadings until After the Trial, when it was too late to Amend, and the successful litigant was often deprived of the fruits of a Verdict according to the merits by a slip in the Pleadings, which might have been remedied if brought to his notice by Demurrer.” ~‘
1813). See, also, Kelly v. Chicago City R. Co., 283 111. 640, 119 N.E. 622 (1018i. In referring to this type of practice, in the Illinois case of Oilman v. Chicago Railway Co.,42 Craig, J., in dissenting, declared: “The defendant, if not sufficiently informed of the Statement of Claim, had the right to demand a more Specific Statement, but instead of that it filed an Affidavit of Merits, in which it reserved the right to object to any insufficiency of plaintiff’s claim, went to Trial, and had a Fair Trial on the Merits, and, having been unsuccessful in the Trial, now asks that the Judgment be Reversed because the Statement of Claim did not set out a Complete Cause of Action.” ~ The majority of the Court failed to appreciate that the main Function of Pleading is to clear the ground preparatory to the Trial. The need of a formal “basis for the Judgment” is not a sufficient reason for permitting such Objections to Pleadings to be raised and be availed of after a Trial on the Merits, unless it is shown that the defendant was actually prevented from having a Fair Trial by reason of the Defect. In some States, a defendant, when a Demurrer has been erroneously overruled, may not Move in Arrest of Judgment; yet he may Move for Judgment Non Obstante Veredicto, or he may secure a Reversal of the Judgment on Writ of Errorfr~ But it has been well said that “a Court, by Ruling Wrongly on a Demurrer, does not preclude itself from afterwards Ruling Rightly upon a Motion in Arrest of Judgment.” ~ C. 205 El. 305, 311, 109 N.E. 181, 183 (1915). 43- See, also, Enberg it. City of Chicago, 271 Ill. 404, 411, ill N.E. 114,117(1915). 4’ ~-hicago & B. I. U. Co. it, Hines, 132 111. 161, 23 N. E. 1021 (1800); Chicago & A. It, Co. it. Clausen, 173 El. 100, 50 N.E. 650 (1895); Beavely it. HarrIs, 239 III. 526, 88 N.E. 238 (1909). See, also, People it. Powell, 274 Ill. 224, 113 N.E. 614 (1916).
428, 430, 67 SW. 69 (1902). Cf. Warren it. Badger Lead & Zinc Oo., 255 Mo. 138, 164 SW. 206 (1914). Sec. 307
FROM the logical nature of the Rules governing all Common-Law Pleading, it is apparent that, if a Verdict is to be effective as a finding upon the Issues presented, it must conform to and include all matters of Substance covered by such Issues. Judgment will consequently be Arrested when a General Verdict, awarding Entire Damages, is given on a Declaration containing Several Counts, some of which are bad, but not when it is silent as to matters which, though submitted, can have no effect upon the merits of the controversy.46
AS we have seen,’7 it is well settled that Faults in Pleading may in some cases be Aided or Cured by Verdict. Thus, where the plaintiff, in alleging a grant which must have been by deed, fails to expressly State in the Declaration that it was by deed, and the defendant, instead of Demurring, as he would be entitled to do, and in case of which the Declaration would be held bad, Pleads Over, and Issue is taken upon the grant, and a Verdict rendered for the plaintiff, the Verdict Cures the Defect in the Declaration, and no objection can be taken on that ground by motion in Arrest of Judgment, or by Writ of Error.’~ The doctrine of Aider by Verdict is 46. Leach it. Thomas, 2 Id. & W. 427, 150 Eng.Bep. 824 (1837); Posnett it. Marble, 62 Vt. 481, 20 A. 813 (1890). In most States if there is One Good Count by which a General Verdict can be supported, Judgment will not be arrested because some of the counts are detective. Langan it. Enos Fire Escape Co., 233 Ill. 308, 84 N.E. 267 (1908); Klofski it. Railroad Supply Co., 235 Iii. 146, 85 N.E. 274 (1008); yarn it. Pelot, 55 Fla. 357, 45 So. 1015 (1908). See, also, White it. BaIley, 14 Conn. 272 (1841), absence of finding on immaterial issues; Patterson v- United States, 2 Wheat 221, 4 LEd. 224 (1817). 47. See Alder and Amendment, e. 26, § 299. 48. Ligbtfoot it. Brlghtman, Hut 54, 123 Eng,ltep. 1096 (1622); And see, Arkansas: Knight it. Sharp, 24 Ark. 602 (1867); Illinois: Beeves it. Forman, 26 founded on the Common Law, and is entirely independent of any Statutory Enactment. The expressions “Cured” or “Aided by Verdict” signify that the Court will, after Verdict, presume or intend that the particular thing which appears to be Defectively or Imperfectly Stated, or Omitted, was duly proved at the Trial so as to support the Verdict. But, if the Declaration fails to allege any Substantive Fact which is essential to the Statement of a Cause of Action, and which is not implied in, or inferrable from the finding on those which are alleged, a Verdict for the plaintiff does not Cure the Defect. Thus, for example, if in Ejectment the plaintiff Omits the Allegation of Ouster, and the Jury nevertheless finds a Verdict for the plaintiff, the Judgment must be Arrested. The extent and principle of this doctrine has been succinctly stated in the famous English case of Jackson ~. Pesked,’9 in which Ill, 3J.3 (1861); Commercial Ins. Co. it. Treasurit Bank, 61 Ill. 482 14 Am.Itep. 73 (1871]; Compton it. People, 86 Ill. 176 (1877); Barnes it. Brookman, 107 Xli. 317 (1883); Maryland: Merrick it. Trustees of Bank of Metropolis, 8 Gill. (Md.) 50 (1849); Massachusetts: Colt it. Itoot, 17 Mass. 229 (18211; New Hampshire: White it. Concord ]3. Co., 30 N.H. 188 (1855); New York: Addingtou v. AlIen, 31 Wend. (N.Y.) 375 (1833); Vermont: Harrli]]g V. (‘,‘aigie, 8 Vt. 501 (1836).
formal Joinder in Issue, see Strohm it. Hayes, 70 IlL 41 (1873); Imperial Fire Ins. Co. it. Shimer, 96 111. 580 (1881). See, also, note, Aider by Verdict, 6 Va.L.Rev. 285 (1020). 40. 1 Id. & S. 234, 105 Eng,Rcp. 88 (1813). Sec also, Snuth it. Eastern B. B., 85 N.H. 303 (1857); Flanders it. Town of Stewartstown, 47 N.H. 549 (1867); Wallace it. Curtiss, 36 Iii. 156 (1864); Helman it. RETROSPECTIVE MOTIONS 575 Ch. 27 ~tice, in the 70 Railway ared: “The med of the to demand instead of s, in which my insuffiTrial, and ml, having v asks that cause the ut a Comlajority of t the main 1w ground need of a is not a ich Objecbe availed nless it is azal]y preby reason a DemurI, may not t he may Veredicto, Judgment been well ngly on a from af t\‘lotion in )15).
I. 161, 23 N. Jlausen, 173 Harris, 230 People it. 108 Penn. it. Badger 200 (1914). Kottlar & Roppy Com.Law Pldg. ‘tB—b 576
LITIGATING TUE CONTROVERSY Cli. 27
Lord Ellenborough, J., declared: “Where a matter is so essentially necessary to be proved that, had it not been given in evidence, the Jury could not have given such a Verdict, there the want of Stating that Matter in Express Terms in the Declaration, provided it contains Terms Sufficiently General to comprehend it in Fair and Reasonable Intendnient, will be Cured by a Verdict; and where a General Allegation must, in fair construction, so far require to be restricted that No Judge and No Jury could have properly treated it in an unrestrained sense, it may be reasonably presumed, after Verdict, that it was so restrained at the Trial.” And, the principle was well stated, as previously observed, that “where there is any Defect, Imperfection, or Omission in Any Pleading, whether in Substance or Form, which would have been a Fatal Objection upon Demurrer; yet if the Issue Joined be such as necessarily required on the Trial Proof of the Facts so Defectively or Imperfectly Stated or Omitted, and without which it is not to be presumed that either the Judge would Direct the Jury to give, or the Jury would have given the Verdict, such Defect, Imperfection, or Omission, is Cured by the Verdict by the Common Law.” 50 It is only where a “Fair and Reasonable Intendment” can be implied that a Verdict will cure the objection. The Intendment must arise not from the Verdict alone, but from the combined effect of the Verdict, and the Issue upon which the Verdict was given, as shown by the Record. It is essential that ‘the particular thing that is to be presumed to have been proven shall be such as can reasonably be implied from the Allegations on the Record. The criterion by which to distinguish between Defects in a Declaration Schroeder, 74 III. 158 (1874); Ladd it. Piggott, 114 III. 647,2 N.E. 503 (1885). be. Stennel it. Hogg, 1 Wms.Saund. 226, 228 note i, 85 Eng.Rep. 244, 245 (1609). See, also, City of Elgin v. Thompson, 98 Ill.App. 358 (1001). which are, and such as are not, Cured by Verdict, was laid down in the year 1781, by Lord Mansfield, in the case of Rushton v. Aspinall,5’ to the following effect: Where the statement of the plaintiff’s Cause of Action, or Title, is Defective or inaccurate, the Defect is Cured by a General Verdict in his favor; because, to entitle him to recover, all circumstances necessary, in Form or Substance, to complete the Title so Imperfectly Stated, must be proved at the Trial, and it is therefore a fair presumption that they were so proved. But, where no Title or Cause of Action is shown, the Omission is Not Cured; for if a necessary Allegation is altogether Omitted from the Pleading, or if the latter contains Matter Adverse to the Right
English: Jackson it. Pesked, I Id. & 5. 234, 105 Eng. Rep. 88 (1813); Nerot it. Wallace, 3 T.R. 25, 100 Eng.Rep. 436 (1780); weston it. Mason, 3 Burr. 1725, 97 Eng.Rep. 1067 (1765); Illinois: Bowman it. People1 114 Ill. 474, 2 N.E. 484 (1885); Barnes it. Brook- man, 107 III. 317 (1888); Smith it. Curry, 16 Ill. 147 (1858); Missouri: Richardson it. Farmer, 36 Mo. 35 (1865); Roper it. Clay, 18 Mo. 383 (1853); New Hampshire: White it. Concord B. Co., 30 N.H. 188 (1855); Town of Colebrook it. Merrill, 46 N.H. 160 (1865); Pennsylvania: Miles it. Oldfield, 4 Yeates (Pa) 423 (1807). As to the assignment of a General instead of a Special Breach, see Minor it. Mechanics’ Bank of Alexandria, I Pet. (U-S.) 63, 7 LEd. 47 (1828). Cf. Abrahams it. Jones, 20 Ill.App. 83 (1880). On the Statement of a wrong Venue, see Barlow it. Garrow, Minor (Ala.) 1 (1820); on a Defective Consideration, see Hendrick it. Seely, 6 Conn. 176 (1826); on a Joinder of Good and Bad Counts in the same Declaration, See Payson it. Whitcomb, 15 Pick. (Mass.) 212 (1834); on the Defective Statement of a Good Title or Cause of Action, see Gardner it. Lindo, I Crunch CC. 78, Fed.Cas.No,5,231 (1802); New Hampshire Mut. Fire Ins. Co, it. Walker, 30 N.H. 324 (1855); Clark it. Fairley, 24 Mo.App. 420 (1888); on Want of Special Demand, see Bliss it. Arnold, S Vt. 252 (1836). See, also, Andros it. Childers, 14 Or. 447, 13 P. 65 (1887); MeCune it. Norwich City Gas Co., 30 Conn. 521 (1862); Moline Plow Co. v. Anderson, 24 IlLApp. 3M (1887); Blair t Chicago & A. By, Co., 89 Mo. 353, 1 S.W. 350 (1887); Palmer it. Arthur, 131 U.S. 60, 9 SOt. 649, 33 LEd. 87 (1888); Western Union Tel, Co. it. LongwllI, 5 N.M. 308,21 P. 839 (1889). Sec. 308
577
of the Party Pleading it, and so clearly expressed that no reasonable construction can alter its meaning, a Verdict will afford no help. A more simple statement of the Rule is that a Verdict will Cure the Defective Statement of a Title, but Not the Statement of a Defective Title. The Verdict must be for the Party in whose favor the implication is to be made, for it is in consequence of the Verdict, and to Support it, that the Court is induced to put a Liberal Construction upon the Allegations on the Record.52 THE MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT 308. When a Plea is Good in Form, but shows no valid Answer to the Merits of the Action, the Court will order Judgment for the plaintiff, Notwithstanding a Verdict in favor of the defendant. The Motion will now be Granted in favor of a defendant, where the plaintiff’s Pleadings are not sufficient to support a Judgment upon a Verdict in his favor. IN a certain class of cases, where the Party who has secured a Verdict, is not entitled to a Judgment upon it, the Court may not only Arrest the Judgment in pursuance of the Verdict, but may give Judgment in Chief, Non Obstante VerediCto; that is, in favor of the Party against whom the Verdict was found. But such a course of procedure was taken only in clear cases where there was no doubt that the Party, against whom the Issue was found, was entitled to Judgment upon the Whole Record.53 This was, in effect, a Motion for Judgment on the Pleadings, and was granted, for example, where a Plea in Bar confessed a good Declaration, but the matter Alleged in Avoidance constituted no Legal Defense. In such $2. Easton it. Pratehett, 4 Tyr\v. 472 (1834); Kelle~ her it. Chicago City H. Co., 256 Ill. 454, 100 N.E. 145 (1912). $3’ Trussel’s Case, Cro.Eliz. 213, 78 Eng,Rep. 469 (1591); Claflin it. flawes, 8 Mass. 201 (1811); Lough it. Thornton, 17 Minn. 253 (1871). a situation, as the right of the plaintiff to recover had been confessed by the Defective Plea, it would amount to a denial of Justice to withhold from the plaintiff a Judgmentin-Chief.
II, Procedure, e. V. Arrest of Judgment and Ito-pleader, 171, 172 (6th ed. by Will, Albany, 1909). 155. Burnham it. New York Co., 17 R.I. 544, 23 A. 628 (1891); Bellows it. Shannon, 2 Hill (N.Y.) SO (1841). 56. Tooker it, Arnoux, 76 N.Y. 397 (1879); Plunkett it. Detroit Electric By. Co., 140 Mich. 299, 103 NW. 020 (1905); Garrett it. Beaumont, 24 Miss. 377 (1852); Shiites it. Eno Cotton Mills, 151 NC, 290, 60 S.E. 141 (1909); Cruikshank it. St. Paul Fire & Marine Ins. Co., 75 Minn. 266, 77 NW. 958 (1899). 57. Keigwin, Cases In Common Law Pleading, C. XVIII, The Retrospectiite MotIons, 773, n. 3 (24 ed. Rochester 1934). 5S. Ibid. 1. 27
Ac-rate, rdict ) re~orm Im~rial, that le or Not alto-the tight lse~ Eng. 100 1725, Pee- rookL 147 ; ~io. New F. 188 [. 160 eates Spe’ Alex&bra)w V. Con176 45 511 Lb, 15 tatelard- .5231 ~Jalk.App. Bliss 05 it. ne V. oline 887);
s.wS.Ct. 30. V. 578
LITIGATING THE CONTROVERSY Ch. 27 serves that upon an Arrest of Judgment, no Entry of Judgment is made for Either Party, except where the plaintiff desires a Judgment to be Entered for the defendant to serve as the basis of an Appeal, thus enabling him to have a Final Adjudication of the alleged Cause of Action. In the absence of such an Entry, the action stops at the Arrest of Judgment, with the rights of Neither Party prejudiced, and with the plaintiff free to renew the litigation in some other form and at some other time when success is more apt to attend his efforts. By contrast, a Judgment Non Qbstanto Veredjcto is as conclusive as is any other Judgment.5° And there is also a distinction between a Judgment Non Obstante Veredicto and a Re-pleader; the first being given when a Plea is Good in Form, but Bad in showing a Defense without merit upon which Issue is Joined and found for the Party Pleading; while the latter is Awarded when the Defect lies rather in the Manner of Statement than the Matter Pleaded, upon which aa’i Immaterial Issue is Joined. A Judgment Non Obstante Veredicto is always upon the Merits of the Action; a Repleader is upon the Form and Manner of Pleading.6° If a Plea is Defective, and the defendant succeeds at the Trial, the question is whether the Plea Confesses the Cause of Action. If it does, and the Matter Pleaded in Avoidance is insufficient, the plaintiff will be entitled to Judgment Notwithstanding the Verdict. If not, there should be a Repleader. 5$. Birmingham it. Andrews, 222 Ala. 362, 132 So. 877 (1931). 60. English: Lambert it. Taylor, 4 Barn. & C. 138, 107 Eng.Rep. 1010 (1825); New York: Otis it. Hitchcock, 6 Wend. 433 (1831). See, also, English: Wilkes it. Broadbent, 1 Wlls.TCB. 63, 95 Eng.Rep. 494 (1744); Alabama: Adams it. Munter 74 Ala, 338 (1883); PennsylVania: Buckley it. Duff, 111 Pa. 223, 3 A. 823 (1886); Inquirer Printing & Publishing Co. it. Rico, 106 Pa. 023 (1884). THE MOTION FOR REPLEADER 309. When the Court, from the Whole Record, is unable to determine for whom the Judgment should be gi’~en, by reason of the Issue as developed by the Pleadings having been an Immaterial One, it may order the Parties to Plead De Novo. WHEN the Parties to an Action have Joined Issue and the Jury has rendered a Verdict upon a point which in its nature is not calculated to determine the controversy on its merits, the Court, not having the proper material upon which to render a Final Judgment in Bar for One Party or the Other, will direct the Parties to Replead the case from the point where there was a Departure from correct Allegation.6’ Such a direction is only ordered after Verdict, for the obvious reason that until then the question for whom the Judgment should be rendered cannot well arise. Beginning with the first Defective Allegation, without regard to the side on which it appears, the New Pleading continues until each Faulty Pleading is replaced with a correct one, and there is a Joinder on a Material Issue, Which will make it possible to determine the case on the merits. The usual case for Awarding a Repleader occurs when the defendant, Not Confessing the Plaintiff’s Cause of Action, sets forth some Fact which is immaterial and hence not calculated to decide the controversy on the merits, whereupon the plaintiff inadvertently traverses the Immaterial Allegation, upon which a Verdict is rendered. The Fact found by the Verdict, not being adapted to determine the litigation, and the Court, not able to render a Judgment on the merits, should order a Repleader for the purpose of producing a Material Issue. Thus, for example, where A brought Assumpsit against 61. For a discussion of Repleader, see McRelvey, Common-Law Pleading, e. VII, Motions Based on the Pleadings, III, Repleader, 179—182 (Now York 1914). See, also, Ex ~arte Pearce, 80 Ala. 195 (1885).
an Administrator, and alleged a Promise by the decedent to pay money, and B, the defendant, Denied that he so Promised, the Flea neither Admits nor Denies the Promise of the decedent. The fact that B set up, to wit, that he had made No Promise, whether true or untrue, was irrelevant, and not responsive to A’s Allegation that the decedent had promised to pay the money. To this Plea, the plaintiff should Demur, but if he should mistakenly Traverse it, the Issue created would be an immaterial one, and a Verdict would not, therefore, be decisive as to the merits of the case. Accordingly, the Court should Award a Repleader to establish an Issue of Fact upon which a Judgment on the merits might be rendered for one Party or the other.°2 The famous case of Staple v. Heydon 63 affords another example of a situation which called for a Repleader. A brought Trespass against B, alleging that .8 had wrongfully entered upon a certain wharf in the Thames river. This wharf was held by A under a lease from C and adjoined a lot on the bank which was held by B under a lease from the same C. B Pleaded that he had a right of way over the wharf, derived from C; but the Plea was Defective in Form because in tracing title it showed that C himself was a lessee, and it did not show from what seisin in fee his term was derived. For this reason his Plea was held Demurrable in Form although it was Valid in Substance. In order to bolster his Defence, B in his Plea further alleged that he had no other way of egress from his lot to the river than by crossing the wharf, which Plea of a right of way by necessity was not supported by the Facts stated in relation to his title. To this part of the Plea A Replied that B had “another convenienter way to the river.” The Issue thus taken upon the Replication of A was 62. Fairfax it. Lewis, 2 Rand. (Va.) 20, 43 (1823). 63. 2 tAt. Raym. 921, 92 Eng.Uep. 115 (1703). 579
In the example above, the Plea does not Confess the plaintiff’s Cause of Action by admitting his title, but Denies his right, although placing the Defense upon an untenable ground. As the defendant has not admitted a prima facie right in the plaintiff, which he has not sufficiently avoided, but on the contrary has disputed the plaintiff’s right, but for reasons which are invalid, the plaintiff is not in a position to demand a Judgment Notwithstanding the Verdict. The Verdict upon the Issue as to whether the defendant had a convenient egress from his lot to the river other than by crossing the wharf, was not determinative of the Issue as to whether the defendant had trespassed upon the plaintiff’s wharf. It follows, therefore, that the distinction between a case for Judgment Non Obstante Veredicto and one for Repleader turns on whether or not the defendant has by his Plea Confessed the plaintiff’s Cause of Action.” As Iceigwin observes: “If the Plea admits the Tort or the Breach of Contract alleged and undertalces to Justify or Discharge it by matter not sufficient for that purpose, a Verdict for the defendant merely proves the insufficient Avoidance and leaves the Admission still effective. But, if the Plea contains No Con-fession and only some Immaterial Matter 64. Lanthert it. Taylor, 4 Barn. & C. 138, 107 Eng.Rep 1010 (1825). Sec. 309 RETROSPECTIVE MOTIONS
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