Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-04-26
1asb6iIIt aniou an1 3nritan.
Opinions OF the Supreme Court of tl8e state
Of Tennessee, NJ Nashville, December
Term, 1855.
Turner ~. Carter ( Pulliam.

Term, 1855.
Turner ~. Carter < Pulliam.
The plaintiff in errer was sued by the defendants,
in On action Of assumpsi,. The suit vas appear
ance to the March Term lS57, OF the Circuit Court
Of Rutherford It seems from Q staten Mt in the
bill Of exceptions, that for reason not disclos-
ed in the record rule was made "to plead and
try at the same Term 10 which the process re-
turued to wit: March Term, 1897. This was not
done, however: and no declaration was filed until
the November Tern, 1857 At the came Term, aud
on the saUe day on which the declaration was & ed
as the bill Of exceptions shows, the dgfsDd8nt ed
an informsl plea IN abatemert alleging the PEN
dency Of another action, between the same parties,
involving the same matters forth in the desara-
tion, she ground Of the present action. To this
plea there demurrer, which vas sustained,
and therefore, the defendant moved the Court for
leave to plead over to the meriis-aEd accompanied
his application with q strong affidavit, sh0 Hing IL
true, a meriorous defence 20 the action aad also
presented his plea with the AFFIDAVIT, which, 1t is net
controveried were ssaabe pleas Bu', the spp!iea-
tion was refused by the Court upon what ground is
not stated From the argument. are left TO infer
that the refusal Eas in view Of the supposed eject
the rule to "a plead and Try" at the previous March
! Term If so-or whatever may have been the reason
-the refusal manifest denial OF the defend
ants rights The rule 10 plead and Try at the March
! TeTm rot having been enforced; but, on tie con
traTy, having been waived BIZ mutasl GOES mi, We
| must suppose in the state of this recoTd-it had
/ spent its force and after the expiration Of the
Term TO which it applied by its terms 10 longer
of any validity or effect. It certainly unjust to
The defendant 10 visit upon him the consequences Of
| a non -cOmpliance with he rule when by the plain
/ tiffs own fail6re 10 file their declaration at that
Term, they rendered a compliance impossible and
put it cut CT The power Of the defendant TO Pui
il his defence to the action.
Thedelay Of the plaintiffs 20 Gle declaration until
the Nov. term, had, Of necessity, the effect OF ma
king that term the appearances term, so far as re-
spees the defendants right of making his defence;
and for the plain reason that, by their own delay,
he could not put in his defence at earlier period
there being no declaration file to be answered.
It was a matter of right, therefore, oa the part
of the defendant, 70 plead to the declaration wh,n
fled-Ho leave of the Court was necessary, and
in Rnnexiug terms, The Court erred.
The so-caIled plea in abelement was defective,
and the demurrer properly susaiaed But the
refusal to permit the defendant to answer af-
ter judgment on the demurrer double error.
In general, the proper judgment on demurrer TO
a plea IL abatement, or TO q replication there
20, is that the defendant answer over. ] Chit
ty's Pl. 500, led. Of 1887
The exceptions to this rule are few, and Of
highly technical nature. IL plea, containing mat
ter which can only be pleaded 10 abatement impro
peTy commences or eJBGlGdes in bar, it is said the
judgment on demurrer may be fual; and it seems
the same rule prevails where mat er in abatement
is pleaded after the last oontnaauce-L6. By the
latter Of these exceptions, the Court was probably
Influenced in denying the defendants right to plead
over.
But this was en- entire misapprehension of lis true
import Upon The state of facts in this record, ]
there had been no e0tnUaHce, in The sense Of the
exception We have already SEEN that, as regards /
the defendants right TO plead, the November term
was the appearance term
In this view alone 1t 10 refuse the appli-
caion Of defendant to Tlead over it vas denying a
fo fuhf ho Cd aft rf
right But even if, by law, the Judgment on de-
had been nal still, the Court possessed the
power control tho jud sment aud 20 let The de-
fendan in TO make his defence, ald it was posts
tive duty TO DO so, if it was shown that be had
meritorious defence. upon such terms as might be
deemed just under the circumstances In This view,
the Court likewise erred in using the defendants
application The affidavit makes PTiaq fasis case
Of merits and more especially the application
was at the first term for making defence
The judgment on the demurrer was interlocutory |
the damages being unlqui3aed-and writ Of |
inquiry was awarded 10 ascertain the amount which
the plaintiffs we're entitled to recover This came !
on TO be executed at a Subsequent term.
The jury were charged 40 ascertain the dam
ages sustained by the non-performance BY defend /
ant of his contract in the declaration mentioned,
they estimated the amount to be Si,45200, for /
which final judgment was rendered. For the pu7S |
pose Of showing the amount Of damages sustained,
the plaintt ifs went into proof Of their whole case,
other considerations aside. The defendant likewise
had witnesses in attendaece by whom he offered to
establish facts tending TO prove that the plsiutfs
had really sustained no damage whatever and in !
justice were entitled to no recoyery; but the Court
refused to permit the defendant TO offer any evil !
dence.
Before proceeding 10 empaunel the jury, the Court
was moved TO set aside the Judgment and allow the
defendant to plead grounds disclosed by affidavit,
but the motion was refused.
In the aspect in which this case is presented, we
do not think it proper TO eater into discussion Of
the question. whether, upon the assumption that the
facts offered to be proved by the defendant true,
the plaintiffs have any just ground OF recovery.
Thai inquiry must be postponed until the defendant
shall have had the opportunity of presenting his
proof in such form that its proper force and ef-
feet can be legitimately considered Of and deter-
zined
All we propose at present, as TO this part Of the
case is to determine whether the defendant, on the
nquistion OF damages had right to be heard, ort0
offer evidence for any purpose And We hold it to
be clear that he had, 10 limited extent.
The legal effect Of the iuteTloeutOry judgment,
which, for the present purpose may be supposed 10
have been properly entered simply to establish
the plaintiffs naked right 10 maintain their actiOn
and consequently, to recover some damages, though
they might be merely nominal But the quantum
of damages remained open one. to be ascsrtain-
ed by proof; and upon this question both parties
had equal right to be beard The defendant vas
further compromised by the judgment BY default,
than to preclude him from denying the plaintiffs
right to HomiraJ damages. But, subj Ct 10 his qual
idcation, he had the right to show if in his power.
that the plaintiffs had legal right to damages;
and if successful in the attempt, the Plaintiffs
would have been entitled to nothing more than mere
ly nominal damages.
In simple justice to the defendant, whose rights
have been SO entirely ignored in these proceedings,
We feel eonsiraiued to and set asiie both the
iDterlocuory and final judgments, and TO reLaud the
cause with liberty to the defendant to plead to the
! merits of the action il such manner may be
/ thought necessary for the defence.
! Judgment reversed. MekISEEY.
! \ correct copy, J. P. CLARK, Clerk.
"a ~