23 Miss. 592 | Miss. | 1852
delivered the opinion of the court.
This was an action of assumpsit brought in the circuit court
The propriety of this proceeding presents the first subject of examination.
A demurrer in law is the tender of an issue in law upon the facts established by the pleading.' A demurrer to evidence raises an issue in law upon the facts established by the evidence, and by necessity involves the admission of the truth of the facts intended to be proved by it. Hence, the object of a demurrer to evidence is to raise the question of the relevancy, or sufficiency in law of the facts designed to be proved, and by it admitted on the record to maintain the issue in favor of the adverse party. The result of this proceeding is necessarily to change the issue in fact, which is made up and closed to the jury, to an issue in law and transfer it to the court. A demurrer of this character is only applicable to the evidence of the adverse party holding the affirmative of the issue, as the party in the negative is never required to produce evidence, unless the affirmative allegations are sustained by proof.
In the case under examination the demurrer was applied to the negative testimony, or to the testimony of the defendants denying the averments of the declaration. If this proceeding were regular, the legal operation of the demurrer was, the admission upon record of the truth of the facts, to the proof of which the evidence was conclusive. Of the facts thus established, it was competent for the court to take cognisance. But a defence necessarily implies a charge, and before the court
The demurrer was filed upon the application of the plaintiffs, and against the consent of the adverse parties; and it is contended that, however erroneous the proceeding may have been, the plaintiffs should not be allowed to question it. If it were a mere irregularity committed at the instance of a party, he should not be permitted to do so. But here something more than an irregularity has occurred. The court without authority discharged the jury, and assumed to decide upon facts, which, by its constitution, it was incompetent to do.
We deem it unnecessary to notice any other question presented in the argument of counsel.
Let the judgment be reversed, and the cause remanded for further proceedings.