Pastene v. Pardini

HENSHAW, J.

This was an action upon a promissory note. The complaint contained the usual averments. It charged that Luigi Pardini, “for a valuable consideration, made, executed, and delivered to plaintiff a promissory note,” etc. It also averred non-payment of the principal sum and interest, and that the whole was due and unpaid. The answer was a denial that “Luigi Pardini, for a valuable consideration or otherwise, made, executed, and delivered to plaintiff, or made or executed or delivered to plaintiff, a promissory note for the sum of twenty-five hundred dollars, or any other sum.” The next denial of the answer was: “Denies that said Luigi Pardini has not paid the alleged note set forth in plaintiff’s complaint; denies that the said Luigi Pardini has not paid the interest on said alleged note set forth in plaintiff’s complaint; denies that said alleged note or the interest is still imp aid.” Following these denials was a cross-complaint, to the effect that the sum of eight hundred dollars was loaned to plaintiff by Luigi Pardini.

At the opening of the trial, plaintiff’s attorney stated what he believed to be the issues involved, and that the sole issue was the execution of the note, stating, further, his conviction that the cross-complaint was not proper in the action. The court, in passing upon the suggestion of the attorney, held that the cross-complaint could not be set up in the action, and settled the pleadings by declaring, 11 The only issue under the

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pleadings is whether the deceased, Pardini, executed the note.” Appellant contends that by the ruling of the court above quoted he was deprived of his defense to the note, of nondelivery, want of consideration, and payment. It is not only the right of the court to settle or to designate at the outset of a trial the issues of fact which have been joined by the pleadings, and to direct and limit the introduction of evidence to those issues alone, but it is eminently a proper practice, and one which would serve greatly to expedite the trial of causes, if more commonly followed. At the same time, when the court has so declared upon the issues, either party has the unquestioned right to except to the ruling of the court, and if by that ruling he shall have been deprived of any substantial right of defense, to urge that upon the attention of the appellate court. He may not only submit to the ruling of the court without future offer of evidence upon the excluded defense, but it is his duty to accept such ruling.