Walker et al. v. Walker, 6 Howard 500

Mr. Chief Justice Sharkey delivered the opinion of the court. The plaintiff below, defendant in error, laid his damages in the writ at thirteen thousand dollars, and in the declaration at fourteen thousand dollars, for which variance the defendants below pleaded in abatement. The plaintiff demurred to the plea, and pending-the demurrer obtained leave to amend by making the damages laid in the writ and declaration correspond; whereúpon the demurrer was overruled, and judgment of quod recuperit was rendered, and this is assigned as error.

But the counsel on the other side insists that it was a correct judgment, because the plea, was a nullity, and the plaintiff might have treated it as such, arid taken his judgment as for want of a plea. In support of this position it is argued, that a variance between the capias ad respondendum and declaration never was pleadable in abatement, but only a variance between the original writ and declaration: that the .capias being only process to bring the party into court, its functions are performed when he appears, and that no further notice can be taken of it.

Such, it is true, is the English practice, and since the original writ has been abolished by statute, pleas in abatement'for a variance are no longer used. Indeed, before the statute of Will. IY. the practice was virtually abolished by rule of court, by which oyer of the original Writ was prohibited, and as it was not a part of the record, a variance could not be pleaded without craving oyer. When the courts came to the determination not to grant oyer for this purpose; it was thereby placed out of the defendant’s 'power to plead the variance in abatement.

Notwithstanding this rule of English practice, the office and character of the capias may be so widely different in this state, as still to justifyJhe plea for a variance. By instituting a comparison, we shall see how the capias in England differs from the capias here. It is proper to remark, in the Jjrst place, that no court can legally proceed to judgment, unless it has jurisdiction over the person, as well as the subject matter. Jurisdiction over the person does not attach, unless he be actually or constructively in court. In England, the,courts never did proceed, unless there was an appearance entered.

A judgment for want of appearance is there unknown. The original is a command, to: the defendant to render what is claimed by the plaintiff, or to appear and show cause why he has not done so. If the defendant fails to appear, a capias ad respondendum is issued, to compel his appearance. ' In bailable actions, the sheriff, when he executes the process, takes bail for the defendant’s appearance; and if he fails to'appear, the bail bond is assigned to the plaintiff, and he proceeds on that; or if the bail be insufficient, he may proceed against the sheriff.

But the defendant not having appeared, the action cannot proceed. In non-bailable actions, if the defendant fails to appear, the plaintiff may enter an appearance for him, if the process has been served, and then the declaration may he filed and the action proceed. So essential is an appearance, either actual, or by putting in bail to the action, or by the entry of an appearance for the defendant, that the plaintiff cannot declare in chief until there be an appearance.

It is then the appearance which gives the court jurisdiction, and the court having thus acquired jurisdiction, it may be plausibly said that the process, having performed its office, is functus officio. It is the mere means of accomplishing an end. Thus it may be seen why the process is no part of the record. It is unnecessary to consider it so for any purpose. It does not, without an appearance, give the court jurisdiction; and as it could answer no other purpose, it is not regarded at all in the record. But it is different with the capias here. An actual appearance is not necessary.

Our courts acquire jurisdiction by service of the process merely, without the appearance of the defendant, and as it must always appear from the record that the court had jurisdiction, the process constitutes a part of the record. If after service of process the defendant fails to appear, the plaintiff may take his judgment by default. By the service, the defendant is considered in court, and the court may proceed to judgment.

When the defendant has appeared, perhaps there can be no good reason for considering the process a part of the record; but as it is essentially so considered where he has not appeared, it may with propriety, for the sake of uniformity, be so considered in all cases; and such has been the current of decisions in this state. If, then, it be a part of the record, it would seem to be a sufficient reason why the English practice should not prevail. A record must be harmonious in all its parts.

Suppose the writ should be in trespass, and the declaration in assumpsit, could it be justly said that no advantage could be taken of this incongruity? Surely it could not. The record would present two distinct causes of action, which could not be joined together. But there is this further reason which may be urged. The process here is intended to give the defendant notice of the cause of action, and- the plaintiff must make his action correspond with the notice given.

The defendant is not hound to appear, and having received notice of an action which he could not gainsay, he either does not appear at all, or if he does, it is with a view to answer the action of which he had notice; and would it not be extremely unjust to allow the plaintiff to change his ground, by declaring for a different cause of action? The form of the action laid in the declaration must conform to the form laid in the process; and if it does not, the process being part of the record, it is on principle a cause of demurrer. A plea in abatement to the writ is recognized by statute. How. & Hutch.

Digest, 657. And this fully shows that it is considered in a different light from what it is in England. We might add to this subject, if it were deemed necessary. But we are not prepared to agree with the counsel, that no advantage can be taken of the process according to the English practice. It is true that, for the reasons before given, the plea in abatement cannot now be adopted, but the same effect is produced in a more

summary way. If there be a variance between the writ and declaration, the proceedings will be set aside on motion, especially in bailable actions. 1 Tidd’s Practice, 3d Am. edition, 446-7-8. In a case reported in 1 Brod. & Bing. 529, a motion was made to quash the capias ad respondendum, because the Christian names of the defendants were omitted, but the court held that the objection had been waived by giving a bail' bond. From this we are led to infer that if there had not been a waiver, the objection would have been fatal.

From this, too, it seems, that although the capias has performed its functions, it-is still the subject of objection. We are thus forced to conclude, that it is at least by no means clear that a plea in abatement for a variance may be treated as a nullity. There is an additional view of this question, which is justly, entitled to consideration. The plaintiff1 did not treat the plea as a nullity, either by entering judgment of his own accord, or by moving the court for a judgment. He received it as a plea by demurring, and having done so, it is now too late for him to change his ground.

The proper time to take such advantage is immediately after the expiration of the rule to plead. When the pleadings are made up, each party must abide by his pleading; or if he wish to. change or amend them, he must have leave of the court for that purpose. The courts will generally allow a demurrer to a plea in abatement to be withdrawn, if the party wishes to reply; but if the demurrer is permitted to stand, the plea cannot after-wards be treated as a nullity. By replying to a plea which might have been treated as a nullity, the fault is cured. 1 Tidd, 464.

With equal propriety may it be said, that by demurring, the party waives the privilege of treating the plea as a nullity, and treats it as a defective plea only. The court evidently did not regard the plea as a nullity, else why give leave to amend? No amendment is necessary where the defect is immaterial. For these reasons, we think the judgment should have been respondeat ouster, for which 'error it must be reversed, and cause remanded.