Abraham v. Levy

72 F. 124 | 5th Cir. | 1896

PARDEE, Circuit Judge

(after stating the facts). The first assignment of error is that “the court erred in overruling the demurrer of the defendant to the plaintiffs declaration.” The demurrer specifies six grounds. The first, third, and the last amount to no more than the proposition that the declaration does not state any cause of action; the second and fourth are to the effect that the defendant is impeded and hindered in his defense by the vague and indefinite character of the declaration; and the fifth objects to the prayer for interest.

Section 671 of the Annotated Code of Mississippi, relating to pleading and practice in the state courts, provides as follows:

“The declaration shall contain a statement of the. facts constituting the cause of action in ordinary and concise language, without repetition, and if it contain sufficient matter of substance for the court to proceed upon the merits of the cause it shall be sufficient, and it shall not be an objection to maintaining any action that the form thereof should have been different.”

This section governs the practice and pleading on the law side of the courts of the United States in the state of Mississippi.

A careful reading of the declaration leads us to the conclusion that it is in direct accord with the section of the practice act above quoted, except, perhaps, that the language is not as concise as it might have been.

The main argument in this court on this assignment of error is on the contention found in the fourth ground of the demurrer, which is that the defendant was impeded and hindered in his defense by the vague and indefinite character of the said declaration. We have given attention to the forcible argument at the bar and in the brief of counsel on this objection to the declaration, and we have no doubt from this argument that counsel really believed that the vague character of the declaration impeded the defense; but we fail to find the basis in the declaration itself. We fail to perceive in the declaration anything but a case where the plaintiff sues to recover money paid out by the plaintiff for the defendant on his request, with a history of the circumstances under which the request was made and the money paid.

The sixth ground of demurrer is that the declaration asks for 8 per cent, interest upon a verbal contract. As the contract sued on was in writing, we do not see any merit in this ground. Besides this, we may say that claiming more than the defendant is willing to admit is due, or more interest than the defendant admits, is no sufficient cause for demurrer.

The second to ninth assignments of error, inclusive, and the twelfth, relate entirely to rulings of the court on the trial as to the exclusion and admission of evidence, and on propositions of law arising on the merits. As the record shows that the case was tried in the court below before the judge, without the intervention of a jury, but does not show any stipulation in writing to that effect, as required by section 649, Rev. St. U. S., we have no authority to review the rulings covered by these assignments. Bond v. Dustin, 112 U. S. 604, 5 Sup. Ct. 296, and cases there cited and reviewed.

The tenth, eleventh, thirteenth, and fourteenth assignments-of error attack the judgment of the court below. First, it is said that the court eri*ed in rendering any judgment in vacation; second, that the court erred in rendering any judgment at the October term, 1895; third, that the order taking the case under advisement at the April term of 1895 was a final discontinuance of the suit; and, fourth, that when the judgment of October 8. 1895, was entered, the cause was coram non judice. The trial judge held that the judgment rendered in vacation was void, and, at the term in October following, set it aside, and then proceeded to render a judgment the same as if at the trial term in April the order entered was one simply taking the case under advisement, treating all that was said with reference to rendering a judgment in vacation as surplusage, evidently going upon the proposition that he had the right to take the case under advisement; therefore the order to that effect was valid, but had no authority to decide the case in vacation, and therefore that part was wholly void. As to the contention that the order of the April term operated a discontinuance of the cause, it is to be noted that no such effect results from the language used, nor was contemplated by the judge; making the same. Tf it was not a discontinuance of the cause, then it must be considered as an order simply taking the case under advisement, to be decided thereafter when the court should be ready and have power to act. Assuming that the judgment rendered in vacation was wholly void (although there is respectable authority supporting the proposition that, where, by consent of parties, such judgment is entered, it is valid, and that, where parties do not object at the time of the entry of such order, they are presumed to consent. See Black, Judgm. § 179), it seems to us clear that as the case was heard at the April term, but no judgment rendered at that term, because the judge took the same under advisement, thereafter, at the succeeding term, the judge had full jurisdiction to then give his opinion and render valid judgment. See Insurance Co. v. Francis, 52 Miss. 467; Moore v. Hoskins, 66 Miss. 496, 6 South. 500.

The judgment of the circuit court is affirmed.