Dunham v. Simmons — 3 Hill & Den. 609

Majority

p. 609

Dunham vs. Simmons.

Headnote

A misjoinder of counts in a justice’s court is not ground for reversal upon certiorari unless it appear that the objection was taken before the justice.

If testimony which is inadmissible be objected to on untenable grounds, and the true ground be not mentioned, the latter will be deemed waived.

Accordingly, where, on the trial of a cause in a justice’s court, a question put to one of the witnesses was objected to on untenable grounds, and the objection overruled; held, that though the question was improper upon grounds not taken at the trial, the party was remediless on error.

Error to the Onondaga C. P. Dunham sued Simmons in a justice’s court, and declared in assumpsit “ for labor and services and for the use of a horse ; also for damage in injuring said horse by hard usage,” &c. Plea, the general issue, with notice of special matter. On the trial, several witnesses swore to a state of facts tending to show that the defendant had negligently injured the horse in question. One Clapper testified that, on the day spoken of by the. other witnesses, he saw the defendant riding a bay horse in a furious and improper manner ; but could not say that the horse belonged to the plaintiff. Beckwith, another witness called by the plaintiff, described the condition of the horse after the injury complained of, and the plaintiff asked him what amount of damage had been sustained in consequence of the ill usage. The defendant objected to the question on the ground, 1. That there was no proof the horse had been injured by the ill usage of the defendant; and 2. That it had not been sufficiently shown that the horse described by Clapper was the one in question. The objection was overruled, and the witness estimated the damage at fifteen or twenty dollars. After the answer was given, the defendant said the question should have been,<c how much was the horse lessened in value 3” The justice gave judgment for the plaintiff, which was reversed by the C. P. on certiorari. Dunham sued out a writ of error.

p. 610

Noxon, Leavenworth Sr Comstock,

for the plaintiff in error, insisted, 1. That, conceding there was a misjoinder of counts in this case, the objection could not now be available to the defendant in error. (Whitney v. Crim, 1 Hill, 61 ; Lovett v. Pell, 22 Wend. 369 ; Cowen's Treat. 564,2d ed.) 2. That no error was committed by the justice in allowing Beckwith to answer the question put to him. (Norman v. Wells, 17 Wend. 142 ,143 ; Ward v. Lee, 13 id. 41 ; Whiteside v. Jackson, 1 id. 418 ; Potter v. Deyo, 19 id. 361, 364, per Bronson, J.)

S. C. Parker, for the defendant in error.

1. There was a misjoinder of counts in this case, and the objection is fatal on error. (Cooper v. Bissell, 16 John. R. 146 ; Grah. Prac. 96, 2d ed. ; Cowen's Treat. 319, 562, 2d ed. ; Gould's Pl. 210, 220 ; Wilson v. Marsh, 1 John. Rep. 503 ; Reynolds v. Reynolds, 3 Wend. 244 ; Church v. Mumford, 11 John. R. 479.) 2. The justice erred in permitting Beckwith to answer the question- put to him by the plaintiff. He should have adopted the question suggested by the defendant.

The misjoinder should have been objected to by demurrer. It was too late to raise the point bn error.

The question as to damages was improper; but not on the grounds taken. It was for the justice to say whether there was, at the stage of the cause when the question was put, sufficient proof of the defendant having injured the horse by ill usage. There had been evidence enough given to warrant him in drawing the inference. The second objection was not well founded in fact or in law. The true ground was not taken at all, nor hinted at till after the question had been answered. By taking specific grounds of objection which are wrong, the party is always considered as waiving the true ground ; and in effect, therefore, as not obj ecting at all. Had the defendant said, damages cannot be thus proved by opinion, the objection would, I admit, have been valid. The attention of the magistrate would

p. 611

then have been properly called to it, and we must intend he would have decided correctly. The party puts the magistrate on a wrong scent 5 he states for his grounds certain facts which do not exist, or the absence of facts which are well enough proved, or some other ground obviously unavailable. He misleads the justice and the opposite party; and then claims, upon error, to introduce a new ground. To allow this, would be to open the way for trickery unbecoming and disgraceful in the administration of justice. Suppose he had objected because the horse was of a certain age, or for any other frivolous cause. I am not imputing either trickery or frivolity in the particular case. No doubt the grounds in question were urged in good faith; but I am speaking of consequences. They are of sufficient importance to hold the party, not only to the true objection, but the true ground. Expressio unius est exclusio alterius. The true ground is waived by the false, just as much as if the waiver were expressed. The rule should be especially adhered to in proceedings before justices, who are generally laymen, and less qualified than lawyers to see the real ground on which an objection may be placed. The following cases will be found, I think, to support this strictness: Whiteside v. Jackson, ( 1 Wend. 418 ;) Norman v. Wells, (17 id. 142, 143 ;) Potter v. Deyo, (19 id. 361, 364.)

On the whole, I am of opinion there was no ground for reversing the justice’s judgment, and that the judgment of the common pleas is therefore erroneous.

Judgment reversed.

Cases cited

Lovett v. Pell 22 Wend. 369 N.Y. p. 610
Reynolds v. Reynolds 3 Wend. 244 N.Y. Sup. Ct. p. 610
Whiteside v. Jackson 1 Wend. 418 N.Y. Sup. Ct. p. 611