42 Miss. 506 | Miss. | 1869
delivered the opinion of the court.
■ The defendants in error, as administrators of the estate of A. J. Harrison, ’ deceased, instituted suit in the Circuit Court of Tishomingo county against the plaintiffs in error, on their writing obligatory, for the sum of $1341, dated December the 25th, A.D. 1866, and payable to the defendants in error twelve months after the date thereof. To this action the plaintiffs in error appeared, and pleaded several special pleas in bar. After which the clerk inserted the following statement: “ And after-wards the plaintiffs filed their demurrer to the defendants’ pleas, which has been lost from the papers in said cause.” On the the 26th day of September, 1866, the record shows the following entry was made: “ This day came on to be heard the demurrer to the defendants’ pleas in this cause filed, which, after argument, is by the court sustained, with leave for defendants
Erom this judgment the plaintiffs in error prosecute this writ of error, and assign various errors, of which it is only necessary to notice the following: “ The court erred in sustaining a demurrer when there was no demurrer on file.”
It is evident from the record, that when the final judgment, purporting to have been upon a demurrer, was rendered, there was no demurrer before the court, and therefore the court en-ed in pronouncing judgment upon a pleading that was not in the cause. The mere unauthorized statement of the clerk, that the demurrer was lost, is no part of the record of the cause, and is not legal evidence of that fact. Among the pleas stated by the clerk to have been demurred to, was a good plea of payment; and it is not to be presumed that any lawyer would have demurred to such a plea in an action of this kind, or that a court would have sustained a demurrer to it. Erom this, it is reasonable to infer that the clerk may be mistaken in his statement as to the existence of the demurrer. Be this, however, as it may, it is very evident that there was no denmrrer in the record or on file among the papers in the cause, at the time that the judgment purports, to have been rendered upon it. And.if
This accords with the former adjudication of this court in the case of Steele v. Palmer, 41 Miss. 88.
The judgment must therefore be reversed, the cause remanded, and a venire da novo awarded.