Van Orman v. Spafford, Clarke & Co.

Dillon, J.

One question which meets us at the threshold, and which as a question under the Revision had not been settled at the time this cause was tried below, is, whether an equitable defense can be pleaded to a law action *190 for the recovery of the possession of real property ? The District Court held such a defense allowable, and this ruling accords with the doctrine of this Court as established by the case pf Rosierz v. Van Dam, ante.

It will be seen by reference to the statement of the case, that the action of the plaintiff was properly commenced at law, or in the circumlocutory language of the Eevision, by “ ordinary proceedings.” The defendant pleaded as a defense an alleged equitable title. The proper mode of proceeding in such cases is set forth in section 2617 of the Eevision. These equitable issues, in a case like the present, in the absence of any consent (§§ 3000, 3001) to try according to the second method, would have to be tried according to the first method of equitable trials, that is, on written evidence in the District Court, and de novo in this court, on the law and facts as apparent of record. Eev., §2999.

There being no legal issues presented by the amended answer, the appropriate practice would be to try first the equitable issues thus made. If these are, in a case like the present, found for the defendant, this disposes of the ease at law. If these are found against the defendant, then if there are legal issues, they are next to be disposed of in the manner provided for the disposition of law issues. If there are no such legal issues, and if the equitable issues are found against the defendant, judgment is entered for the plaintiff on his petition at law.

As we understand the stipulation of the parties and the record, the legal and equitable division of the cause were not kept thus distinct. The whole case, legal and equitable, in all its bearings, was submitted in mass to the court without any stipulation as to whether the trial, either in the court below or in this court, should be as at law or in equity.

And this Court has, in consequence, been greatly at a *191 loss whether to treat this appeal as an appeal in a case by ordinary proceedings, or as an appeal in a case by equitable proceedings. If viewed as a law appeal, then we can regard no evidence that is not duly embodied in, or preserved by, a bill of exceptions; and the evidence in this case is not properly preserved, for instead of being set out in the bill of exceptions, the bill simply recites that the evidence is “ hereto attached.” The bill of exception does not contain the names even of the witnesses; nor is the evidence in the record “ attached ” to the bill, but is contained in another portion of the transcript. That this is not a sufficient identification of the testimony in a law action, see Revision, § 3109, and the case of Lyon v. Brown & Thompson, ante.

We cannot, too often or too pointedly condemn the loose practice of clerks and attorneys in transmitting records in this manner, when the proper practice is so plainly pointed out by the statute and the numerous decisions of this court.

If, on the other hand, the present appeal is to be regarded as being from a decree in equity, then strictly the original depositions and papers, and not copies, should be certified. Rev., § 3512. But where, as in this case, copies, instead of the originals, have been sent, an objection to this course cannot be successfully urged, for the first time after the causéis submitted on its merits. See on this general subject Ticonic Bank v. Harvey (present term). Under the views we take of the present cause, we are relieved of the necessity of determining whether we ought to treat the appeal as being at law or in equity, for the same result is reached whether the appeal is viewed in the one light or the other.

The bill of exceptions recites that “ the defendant (South-gate), offered in evidence a title bond, signed Alexander McGregor, as attorney in fact for James and Duncan McGregor, a copy of which is attached to the answer of-the defendant Southgate.” Plaintiff objected to the intro *192 duction of the bond on the following grounds: 1st. Because defendant Southgate has no title or interest in the bond whatever. 2d. Because the equities of the defendant Southgate, in and to the bond, have been adjudicated upon in this court, between the parties in this case, and decided adversely to the defendant.”

The Court overruled the objection, and permitted the bond to be introduced, to which the plaintiff duly excepted. The ruling was made the basis of a motion for a new trial, which was also overruled, and exceptions taken. Such a bond is referred to in, and a copy of it is attached to, the answer of Southgate. There is no other bond in controversy in the case. This bond is clearly and “ unmistakably referred to ” and identified (Rev., § 3109), and is, therefore, properly before us. By recurring to the statement of the case, it will be seen that this bond constituted the basis and foundation of Southgate’s rights. It was executed and delivered to one Ira N. Briggs. This bond was alleged in the answer of Southgate to have been assigned to Jones & Bass (under whom by several mesne assignments, South-gate claims), by the widow of Briggs and her then husband, James Bonnell. Southgate alleges in his answer, that “he and those under whom he claims, have fully complied with the conditions of the said bond.” Under these issues Southgate had a right to introduce the bond, that being the foundation of his alleged equitable rights. It was one link in the chain of his proof. ' He must first introduce the bond, in order to show his rights under it. When thus introduced, it would be another and subsequent question, whether he would be able to show that he was the assignee of, or equitably entitled to the rights which it conferred. The Court, therefore, properly overruled the objection to the reception of the bond in evidence, on the ground that Southgate had shown “no title or interest in the bond.” He had a right to introduce the bond, and *193 afterwards follow it up by evidence, showing his title and interest in it. The second ground of objection to the introduction of the bond, because the rights of the parties had been adjudicated by the Court in dismissing the cross-petition of Southgate, was also properly overruled. If the plaintiff wished to rely upon this alleged adjudication as a bar to the defendant’s defense, he ought to have set it up in his pleadings. Cooley v. Brayton, present term. He failed to do so, and hence, for this reason, if for no other, this objection to the introduction of the bond was rightfully decided.

This disposes of the case if treated as an appeal at law, and there is thus far, no error apparent of record.

We now turn and examine how the cause stands, viewed as an appeal in equity. Certain testimony is set out in the record. No bill of exceptions is necessary to preserve the evidence in an equity cause where the trial is by the first method. But in order that the cause may be heard de novo in this court, it is necessary that we should be satisfied from the whole record, that all the evidence upon which the District Court acted, is before us. Counsel for the defendant make the point that it does not appear that all of the testimony is contained in thb' record and we cannot disregard it.

In an equitable issue like that presented by Southgate’s amended answer, the decree might, as decrees very frequently do, recite upon what testimony or upon whose depositions the cause was heard below, and if all this recited testimony appeared on the transcript, that would be sufficient. Or the judge who tried the cause might certify upon what testimony it was heard. But in this case, there is no such recital in the decree, and no such certificate of the judge.' Or the clerk might certify that the depositions transmitted or copied, constitute all of the testimony. But the clerk only certifies that he has sent a “ transcript of all *194 of the papers, and pleadings, and record entry which I have been required to copy by the plaintiff in said cause.” Under the prior decisions of this court (Anderson v. Eaton, present term, and cases there cited), we are precluded from examining the cause anew on its merits, for the reason that the plaintiff has not, in any way, made it appear that he • has brought before us all of the evidence on which the cause was tried below.

That court found that the equitable defense was established, and as the record does not enable us to review this finding upon its merits, there remains nothing further to do but to affirm the decree.

Affirmed.