Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-02-11


Code section 290l."
Tine power TO grant amendments in matter Of
form is legal discretion, resting with the in
feriOr courts. and without manifest abuse Of
that discretion, this court will not reverse for
that reason alone"
The court is authorized 10 strike out any plead
ing had for duplieity. unn eoessariiy prOliX,
irrelevant OF frivolous, on motion of the ad-
verse party OF by the court Of its own motion"
" The verdict Of jury without anything TO try IS
nullity. and affords no legal authority for
judgment thereon"
Trabue & Lucas %. NJ. c. Higden.
This suit was instituted by attachment
in the Circuit Court Of Maury county. The
action is founded on five promissory notes,
amounting without interest 10 the aggre-
gate sum of S2556 SO, due the firm Of
Trabue q Lucas. The grounds laid for the
attachment in the affidavit, are that the de-
fendant is about to remove his property be-
yond the limits Of the State and that they
believe he is also about fradulently 10 dis
pose of his property, 20 as to defeat his
creditors in the collection of their debts
Bond was executed as required by law, and
the attachment issued, which was duly re-
turned, levied on the lands and negroes of
the defendant.
The declaration was fled within proper
time, and in the ordinary form. The de.
fendant plead in Abatement. The plea as
suIned TO deny the truth OF the affidavit,
upon which the attachment issued, and
also the authority of the Clerk of the Cir
cult Court to issue the attachment The
plea is in some respects lnsrtiiicially drawn,
and subject 20 more than one criticism;
but in respect of this record we do not
deem it important TO discuss its defects, ex-
cept in one or two particulars. The plea,
after informally alleging the matter before
indicated, which is in part matter de hors,
perhaps, properly enough, concludes as fol-
Iowa And this the defendant IL ready to
verify, whereHpon he prays judgment of
said writ, and that the same may be
quashed" H.. ,.Chitty PleadingH, 46l.
The plea was filed within time at the re-
turn term, verified az follows: "Sworn to
and subscribed before me, January the 9th,
1861. SAMUEL 2. MCGAw, Clerk"
After filing the plea, the record shows
the cause was continued by consent of par
ties from time 10 time, until the May term,
1868, when, npon motion of the defendant,
leave was given him to amend the Verifca-
ton of his plea in abatement, 40 as form
ally TO aver, that it WAS true in substance
and in fact" To this amendment, the
plaintiffs excepted, which was oYerruled
by the court, and the amendment allowed.
Thereupon the plaintiffs moved to strike
out the plea, when motion was refused.
In this state Of the pleadings, 10 far az
the record disclOses the facts, at the Janu-
airy term, 1867, the cause was submitted
10 jury, who il seems was sworn "to try
the issue Joined" and in their verdict they
Er,,I ha IN, ,,ff IT, I.e..Io,4
Upon this finding of the jury, Judgment
was pronounced by the court, discharging
the attachment, and rendering judgment
against the plaintiffs aud their security in
the prosecution bond for costs
Motions for q new trial and in arrest Of
Judgment were entered and overruIed, from
which an appeal 10 this court il prosecuted.
# is clear, under the act of 1889, ch. /,
and the uniform practice of our courts, the
yeriicatiOn is not sufficient; but il is said
the strictness OF the rule adopted under the
act of 1889, has been modified hy the Code,
| section 290l. We do not think SO. True,
the language employed in the Code is not
precisely the same used in the former
statute, but it is in substance and effec; the
same, and cannot, therefore, be held to
| work any modification of the rule. The
plea having been filed without a proper
verifcation, was improperly received by the
court, and might have been treated by the
plaintiffs az a mere nullity. They could
have moved to have it stricken from the
file; or they could have taken Judgment by
| default, at any time after the right of &
| Judgment by default accrued, as if no plea
had been in, totally disregarding it. Code
sec. 290l . Yer, 10; 10 Hum, 04
Head, All.
| But no such motion was made or eXcep-
ton taken to the plea until after its veri
fication was amended under the order o
the court, and now il is insisted that tht
granting OF leave to amend was error, TO
which the judgment Of the court ought t,
be reversed.
Pleas in abatement being regarded a
dilatory pleas, and not going to the merit
Of the action, are to be discouraged an,
always taken strict juris, but prior to tn
adoption of the Code, which greatly en-
larges the power of courts in matters Q
amendment, this court has held that it wa
legally competent for the Circuit Judge, il
the exercise of a discretion, to gran
amendments TO such pleas and certainl,
since the extension of the power, unde
the Code, il cannot now be denied. Th
power TO grant amendments in matter 0
form, Of the nature Of which the presen
case is an example, Is q legal discretion
resting with the inferior courts and with
out q manifest abuse of that discretion
this court will not reverse for that reasol
alone. Helm as. Rogers, Hum, 105
Rsiney and Anderson as. Saunders,
Hum, 447
The matter Of The plea ii formally pre-
{ sented in the present state of our law, b
, | plea in abatement, and sustained by proc
1 | would have been sufficient to defeat th
writ Harris, et ais. as Taylor SneeC
p 539. But il was not, as we think, so pre-
, sented. The plea is not strictly forma
1 | but il is obnoxious to the fault of duplic
] | tv. Two issues are presented in Il, one I
y the jury and the other to the court, one a
issue Of facts and the other OF law, whic
is in violation of the plsinest principle
pleading. j Chitty's Plead. 532.
But this defect al common law could onl
3 be taken advantage of by special demurre
The Code however, section 1882 has el
pressly changed the rule of the Commo
law, and the court is now authorized
= strike ont any pleading had for dupliCity-
g unnecessarily prolix-irrelevant or trivo
II Gus, on motion of the adverse party.
l. follows, therefore, that il was error in Il
u Circuit Court, in oyerruling the motion
|" the plaintiff TO stike out the defendant
plea in abatement after the amendment
ia veriication.
The Circuit Count also erred, We thin
IN oyerruling the plaintiff 3 motion in a
rest of judgment We have already show
, that there was no issue rendered TO q
-, country in the pleadings; and although Il
:, = want Of a similiter, is cured after verdiC
). the want of 3 replication il not cured
- verdict The verdict Of jury without
!. issne 90 try, IL nnllity, and affords
n legal authority for Judgment ihere0
: MayGeld ts Buck a Hemler, Sneed, Al
: A party must demur or plead, one or q
. other Of these courses he Is bound TO tab
while he means TO maintain his action
defense until issue be rendered. Ii he dc
neither, but confesses the right of the a
verse party, or ssys nothing, the court i
mediately gives judgment for his adv
sary in the former case as by ooniessiC
% ia the latter by non prOsS or nal deoei. ;
,a phen's pleading, 1878.
In this case, after the refusal OF q
n. - gsaga