U.S. Supreme Court Wright v. Lessee of Hollingsworth, 26 U.S. 1 Pet. 165 165 (1828)
Wright v. Lessee of Hollingsworth
26 U.S. (1 Pet.) 165
ERROR TO THE CIRCUIT COURT FOR
THE DISTRICT OF WEST TENNESSEE
In a trial in an action of ejectment in which, according to the provisions of the laws of Tennessee, the defendant was held to bail, the declaration, stated two demises by H. & K., citizens of Pennsylvania, and the other the demise, of B. & G., citizens of Massachusetts. The cause coming on for trial before a jury, the plaintiffs suffered a nonsuit, which was set aside, and the court, on the motion of the plaintiffs, permitted the declaration to be amended by adding a count on the demise of S., a citizen of Missouri. The parties went to trial without any other pleading, and the jury found for the plaintiff; upon the third, or new count, and a judgment was rendered in his favor.
The allowance and refusal of amendments in the pleadings -- the granting and refusing new trials, and most of the other incidental orders made in the progress of a cause before trial are matters so peculiarly addressed to the sound discretion of the courts of original jurisdiction as to be fit for their decision only under their own rules and modes of practice. This Court has always declined interfering in such cases.
After the filing of a new count to a declaration, the defendant, who to the former counts has pleaded the general issue or any particular plea, may withdraw the same and plead anew, either the general issue or any further or other pleas which his case may require; but he may, if he pleases, abide by his plea already pleaded and waive his right of pleading de novo. The failure to plead and going to trial without objection are held to be a waiver of his right to plead, and an election to abide by his plea, and if it in terms purports to go to the whole action, it is deemed sufficient to cover the whole declaration, and puts the plaintiff to the proof of his case in the new as well as in the old counts.
This was an action of ejectment commenced in the Circuit Court for the District of West Tennessee in 1813 by the lessee of Levi Hollingsworth and John Kaighn, citizens of the State of Pennsylvania, against Henry Wright and others, the plaintiffs in error, and citizens of Tennessee. The declaration set forth a demise from Hollingsworth and Kaighn to John Denn, the defendant in error. A notice was served on the tenants in possession who, at June term, 1813, appeared, and put in the plea of "not guilty." At June term, 1817, after a jury had been sworn in the cause, the plaintiff suffered a nonsuit, which was afterwards set aside, and the plaintiff had leave to add a new count to his declaration, upon condition that all the costs of the term should be paid by him absolutely, and that he should pay all preceding costs, the same to be refunded, if he should ultimately succeed in the action. A new
count was then filed in which is stated a lease from Benjamin Spencer, a citizen of Missouri. To this count no plea was filed, and at June term, 1825, a trial was had and a verdict and judgment were rendered for the plaintiff upon the last count in the declaration.
This writ of error was brought to reverse the judgment.
MR. JUSTICE TRIMBLE delivered the opinion of the Court.
This action of ejectment was commenced in the circuit court held in East Tennessee by suing out a writ of capias ad respondendum, accompanied with the declaration, and the tenants in possession held to bail to answer to the action in the manner provided for by a statute of the state. The original declaration contained two counts -- the first on the demise of Hollingsworth and Kaighn, citizens of Pennsylvania, the second on the demise of Joseph Blake and Daniel Green, citizens of Massachusetts.
The tenants appeared and pleaded not guilty, upon which issue was joined. A trial was had, and a nonsuit suffered by the plaintiff which was set aside on the payment of costs. After these proceedings, the court, on the motion of the plaintiff, permitted the declaration to be amended by adding a count on the demise of Benjamin Spencer, a citizen of Missouri. The parties went to trial without any other pleadings, and a verdict having been found for the plaintiff upon the third or new count, judgment was thereon rendered in his favor, to reverse which the defendants have prosecuted this writ of error.
They allege the judgment is erroneous and should be reversed:
1st. Because the count on which judgment was rendered against them, does not show that Missouri is one of the United States.
2d. Because the court permitted the declaration to be amended by adding a new count on the demise of Benjamin Spencer, and especially as the amendment was permitted with payment of costs.
3d. Because no plea was filed to the new count, nor any issue made up thereon.
The first objection was very properly not pressed in argument. The count alleges Benjamin Spencer to be a citizen of the State of Missouri. This count was filed after Missouri was admitted as a state into the Union, and there can be no question but that this and every other court in the nation are bound to take notice of the admission of a state as one of the United States without any express averment of the fact.
In support of the second objection, it is urged that the admission of the new count on the demise of a new lessor made a material alteration in the suit; that the suit having been originally commenced under the state practice, by writ of capias ad respondendum, to which the former lessors only were parties, the amendment was, in substance and effect, the institution of a new suit, or at least grafting a new one upon the old, and produced an incongruity upon the record, the first and second counts, and the proceedings on them, being proceedings under the statute, and the third or new count, a proceeding at common law, and that according to established principles of practice, it should have been allowed, if at all, only on payment of costs.
This argument would be entitled to great and perhaps decisive influence if addressed to a court, having any discretion or power over the subject of amendments.
But the allowance and refusal of amendments in the pleadings, the granting or refusing new trials, and indeed most other incidental orders made in the progress of a cause before trial are matters so peculiarly addressed to the sound discretion of the courts of original jurisdiction as to be fit for their decision only, under their own rules and modes of practice. This, it is true, may occasionally lead to particular hardships, but on the other hand, the general inconvenience of this Court attempting to revise and correct all the intermediate proceedings in suits, between their commencement and final judgment, would be intolerable. This Court has always declined interfering in such cases; accordingly it was held by the Court in Wood v. Young, 4 Cranch 237; that the refusal of the court below, to continue a cause after it is at issue, is not a matter upon which error can be assigned. That the refusal of
the court below to grant a new trial is not matter for which a writ of error lies, 9 U. S. 5 Cranch 11, 9 U. S. 187 , and 17 U. S. 4 Wheat. 220, and that the refusal of the court below to allow a plea to be amended or a new plea to be filed or to grant a new trial or to continue a cause cannot be assigned as a cause of reversal or a writ of error. We can perceive no distinction in principle between these cases and the one before the Court. We must take the declaration, including the amendment, as we find it on the record. Nor can we interfere because the court below did not, as it ought, require the costs formerly accrued to be paid as a condition of the amendment.
The authorities cited by the learned counsel do not, we think, support his last position -- that the judgment is erroneous because a plea was not filed to the new count. They prove unquestionably that upon the amendment's being made to the declaration by adding a count, the defendants had a right to plead de novo; they prove nothing more. They do not show that the defendants, in such cases, must necessarily plead de novo, or that judgment may be entered by default for want of a plea to the new count if, before the amendment, he has pleaded the general issue. We think the practice is well settled to the contrary. The defendant has a right, if he will, to withdraw his former plea and plead anew, either the general issue or any further or other pleas which his case may require, but he may, if he will, abide by his plea already pleaded, and waive his right of pleading de novo. His failure to plead and going to trial without objection are held to be a waiver of his right to plead, and an election to abide by his plea, and if it in terms purports to go to the whole action, as is the case in this instance, it is deemed sufficient to cover the whole declaration, and puts the plaintiff to the proof of his case on the new as well as on the old counts.
This is the general doctrine in other forms of action, such as trespass and assumpsit, and we see no reason to distinguish the action of ejectment or take it out of the general rule.
Judgment affirmed with costs.