Goforth v. Stingley

79 Miss. 398 | Miss. | 1901

Cali-ioon, J.,

delivered the opinion of the court.

At the return term of this action of ejectment, the parties having joined issue on the plea of not guilty, and each having-demanded of the other a bill of particulars of title, the court allowed each ninety days in which to file the same, and each did file a bill of particulars within that period. The defendants below, in their bill of particulars, claimed title solely from adverse possession for more than ten years before suit brought, but conclude it in the following words: “And their title to said land, if there ever was any deficiency therein, which they do not admit, has been perfected by such adverse possession. ’ ’ The plaintiffs, in their bill of particulars, claim title on the sole ground that they are the heirs at law of one J. M. McDonald, deceased, and to show title in this ancestor they make no. pretense of deraigning it from the government down, nor of any title by adverse possession, but simply refer to a deed from one Goforth to McDonald, and to two deeds from one Bussey to one W. W. Goforth, and then aver that Bussey inherited from his wife, Mary S. Bussey. In this situation of affairs the case was called for trial on the first day of the next term of court — the trial term — and then was set for trial on the next day, and on that next day was reset for trial on the eighth day. On this eighth day, the case being-called for trial, both parties having announced ready for trial, and the jury being then in the box, plaintiffs asked leave to file an amended bill of particulars, to show that they had title from the government, and the court refused this request.

We cannot hold that there was any abuse of discretion in refusing to allow this amendment, requested, as it was, at a time so late in the history of the cause. On its face the ruling would seem clearly right, and we could not intelligently review it, because it does not appear from the record that any reason whatever was given for the failure to file the document within the time originally allowed, or to ask the permission to file it before announcing ready for the actual trial, with the jury in the box; nor does the record anywhere show that the amendment itself was exhibited to the court. It may have been a nullity on its face if exhibited. This ruling being correct, the plaintiffs had no case. Defendants were presumed by law to be in the rightful possession until the plaintiffs showed title, and, until this was done, they need say nothing, and plaintiffs could not, in the evidence they adduced, travel outside the boundaries of the bill of particulars they did file, and this bill showed no warrant to disturb the defendants. By § 1652, code 1892, the parties are expressly confined in the evidence, whether documentary or parol, which they may offer, to the matters contained in their bill of particulars, and it also expressly provides for distinct notice of such parol or documentary facts. In this case there were efforts by plaintiffs to show title by facts outside of their bill of particulars, and the court properly gave the jury a peremptory charge to find for defendants.

Affirmed.