Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-06-28
SUPREME COURT.
DECISION OF CASE FILED TESTER
DdY.
T. r. Thompson Respondent rs. Adam fdian,
appellant.
OPINION.

Under the liberal rules governing the con-
struction of pleadings and proceedings in
justices courts, especially when, as in this
case, the adverse party appears and makes no
objection, the oral complaint which was made
and sworn to in this action, as the same Is
stated in substance in the docket entry, con-
tanned sufficient statement of facts to consti-
tute cause Of action. The facts specifically
alleged fairly import an authority from de-
PENDANT as principal to one Latson, as his
agent to purchase of any. farmer an
indefinite quantity OF iced for his, defendant s,
upon, and to give an order therefor on his said
principal to the seller; that in pursuance of
such authority, Latson bought quantity of
teed for ten dollars, and gave the within order
accordingly, which afterwards duly pre-
sented for payment and refused. The omission
to state where the purchase was made and what
quantity was bought, was not fatal defect,
for it appears that the quantity, according to
the price agreed upon by the agent, amounted
in value. to the sum of ten dollars, and it does
not appear afhrmatively that the transaction
occurred at time so remote as to bring it
within the influence of the statute of hmlta'
lions.
II. On the return day of the summons, the
! answer to the verified complaint which con
tanned both general denial, and counte
claim exceeding in amount the plaintiff claim
He thereupon asked for an adjournment. which
was granted without objection, and by consen
of plaintiff On the adjourned day, defendan,
! did not appear, and plaintiff thereupon proved
his cause Of action and took judgment. 1t i
now insisted by defendant that the counte
claim was admitted, because there was no reply
and as this exceeded the amount of plaintiff
claim the Judgment was erroneous.
! Being unverified the answer was a MULTI,
and must be 80 treated, unless the plaintiff b.
some act SO recognized its validity as plead
ing, as to preclude him from raising the object
ion of want of verifcation. Hi
omission to make such objection when it wa'
filed and his consent to an adjournment di'
| not under the circumstances amour
to waiver Of his right of objection in respec
to such defect. He was not called upon nor re re
auirsd to make 1t uhs1i $50 ot;an nv athar
wise under the alleged answer as pleading i
the cause Nothing of this kind was done O
attempted by the defendant prior to the &C
| journment. His request for an adjournmen
was not an act of that character, nor wa
| plaintiffs consent thereto any implied recos
milton of the validity of the answer as plead
ing nor any admission that it create
or rendered any issue; for an adjourn
ment may on the return day Of the summon
be properly had by consent. though no issu
whatever is joined and answe
is interposed. lO'Brien VS.. Pomeroy
% Minn. 1907. On the adjournment day whe
the cause was tried the defendant made no AZ
pearance whatever. In this regard the case
clearly distinguishable from Taylor VS.. Bisse
reported in LIST MINI. 225. In that case, as al
pears from the opinion, not only was the tri'
contested by both parties upon the defecti'
pleadinss, the complaint being wholly withor
verifcarion, and the answer improperly veritie
without any objection on that account, but tt
defendant moved for judgment for the balant
of his counter claim, on the ground that
had been verified by his oath, and had not bee
denied by reply. las the plaintiff did NJ
resist this motion, because of the imperfe
verifcation of the answer he may
said to have waived the defect, and to ha'
consented to determination of the motion Q
the pleadings, the same as though the answ'
had been properly verified In the case at b
as already stated, the defendant not on
!, sought no benefit from his answe: by motto
or otherwise, but wholly failed to put in al
appearance at all at the trial. Under these CT
cumstances, the justice committed no error
disregarding the answer, and in giving jud
ment upon the proofs submitted by plaintiff
, The judgment appealed from is accordingly a
q firmed. CORNELL, y.
think that within the decision in Robe
vs. Brooks, % Mimi, 1873, the plaintiff by ia
ing to object o the answer when it was file
waived the irregularity of want of veritcatlo
l and after that the answer could not be dis
( garded. GILFILLAN. G. ].