Goodman v. Ford, 23 Miss. 592

Goodman v. Ford

23 Miss. 592 | Miss. | 1852

Mr. Chief Justice Smith

delivered the opinion of the court.

This was an action of assumpsit brought in the circuit court *595of De Soto county, by the plaintiffs in error against the defendants, as the maker and assignor of a promissory note. On the trial, the plaintiffs read in evidence the note sued on, and there rested their cause. The defendants then introduced the evidence on which they relied; after which, rebutting testimony was introduced by the plaintiffs. The evidence having been closed on both sides, an opening argument was addressed to the jury by counsel for the plaintiffs. At this stage of the trial, the plaintiffs moved the court for leave to withdraw the case from the jury, with permission to tender a demurrer to the evidence of the defendants. The motion was opposed without success, and the plaintiffs were permitted to file their demurrer.

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 *596could determine the sufficiency of the facts found by the demurrer to maintain the issue in favor of the defendant, it was necessary to institute a comparison between, or to weigh the facts admitted by the demurrer with those proven by the testimony of the plaintiffs. But as the demurrer could not be applied by the plaintiffs to their own evidence, the court could not invade the province of the jury and find the facts, to the proof of which the evidence of the plaintiffs was conducive. Hence the proceeding was irregular, and the judgment of the court erroneous, if not a nullity.

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.